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Library 


IN  THE 

ST.  LOUIS 

Court  of  Criminal  Correction. 

CITY  OF  ST.  LOUIS. 


STATE  OF  MISSOURI,  Plaintiff, 
vs. 

PARKER  DISTILLING  COMPANY,  Defendant . 


CHARGED  WITH  MANUFACTURING  LIQUOR  WITH- 
OUT A LICENSE. 


POINTS  AND  AUTHORITIES,  ARGUMENT  AND  BRIEF 
UPON  BEHALF  OF  THE  STATE,  AS  TO  THE  CON- 
STITUTIONALITY OF  THE  ACT  LICENSING  THE 
MANUFACTURE  AND  SALE  OF  INTOXICATING 
LIQUORS,  LAWS  1909,  PAGE  654. 


ELLIOTT  W.  MAJOR, 
Attorney-General  of  the  State  of  Missouri. 


THE  HUGH  8TEPHEN8  PRTG.  OO.,  JEFFERSON  CITY. 


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US 


IN  THE 


ST.  LOUIS 

Court  of  Criminal  Correction. 

CITY  OF  ST.  LOUIS. 

STATE  OF  MISSOURI,  Plaintiff, 
vs. 

PARKER  DISTILLING  COMPANY,  Defendant. 

CHARGED  WITH  MANUFACTURING  LIQUOR  WITH- 
OUT A LICENSE. 


POINTS  AND  AUTHORITIES,  ARGUMENT  AND  BRIEF 
UPON  BEHALF  OF  THE  STATE,  AS  TO  THE  CON- 
STITUTIONALITY OF  THE  ACT  LICENSING  THE 
MANUFACTURE  AND  SALE  OF  INTOXICATING 
LIQUORS,  LAWS  1909,  PAGE  654. 


STATEMENT. 


This  is  a case  of  the  State  of  Missouri  vs.  Parker  Distil- 
ling Company,  wherein  it  is  charged  with  manufacturing, 
rectifying  and  selling  intoxicating  liquors  in  the  State  of  Mis- 
souri without  first  having  procured  a license  so  to  do,  under 


2 


the  provisions  of  the  Liquor  License  Act,  Laws  1909,  page 
654.  This  information  was  filed  by  Hon.  Phillips  W.  Moss, 
prosecuting  attorney  of  the  St.  Louis  Court  of  Criminal  Cor- 
rection. . 

The  defendant  filed  its  motion  to  quash  the  information, 
challenging  the  constitutionality  of  the  act  therein  upon  ten 
grounds,  five  of  which  apply  to  the  State  Constitution  and  five 
to  the  Federal  Constitution.  The  sufficiency  of  the  informa- 
tion is  not  attacked.  The  prosecuting  attorney  of  the 
city  of  St.  Louis,  having  called  upon  the  Governor  for  the  aid 
and  assistance  of  the  Attorney- General,  as  is  provided  by 
statute,  it  becomes  and  is  my  duty  to  act,  in  response  to  such 
request  and  direction. 

I,  therefore,  in  opposition  to  the  defendant’s  motion  to 
quash,  present,  upon  behalf  of  the  State,  the  following  argu- 
ment and  brief  in  support  of  the  constitutionality  of  the  act. 
For  the  convenience  of  the  court  in  passing  upon  the  ques- 
tions presented,  the  State  prints  in  full  the  information  and 
the  motion  to  quash.. 


INFORMATION. 


<l  State  of  Missouri, 
City  of  St.  Louis. 


ss. 


In  the  St.  Louis  Court  of  Criminal  Correction,  St.  Louis, 
October  19th,  1909. 


State  of  Missouri,  Plaintiff, 
vs. 

Parker  Distilling  Company,  Defendant. 

Charged  with  Manufacturing  liquor  without  a License. 
Phillips  W.  Moss,  Prosecuting  Attorney,  of  the  St.  Louis 
Court  of  Criminal  Correction  now  here  in  Court,  on  behalf  of 
the  State  of  Missouri,  information  makes  as  follows: 


3 


That  in  the  City  of  St.  Louis,  on  the  18th  day  of  October 
1909,  the  Parker  Distilling  Company,  was  a corporation  or- 
ganized under  and  by  virtue  of  the  laws  of  the  State  of  Mis- 
souri, and  was  engaged  in  the  business  of  manufacturing,  rec- 
tifying, selling  and  exposing  to  sale  in  this  State  intoxicating 
liquors,  the  said  intoxicating  liquors  not  being  wine  or  spirits 
made  from  grapes  or  fruits  grown  in  this  State,  and  the  said 
Parker  Distilling  Company  not  being  a dramshop  keeper 
licensed  under  the  laws  of  this  State ; without  first  and  before 
having  secured  a license  to  engage  in  said  business,  contrary 
to  the  form  of  the  Statute  in  such  cases  made  and  provided, 
and  against  the  peace  and  dignity  of  the  State. 

(Signed)  PHILLIPS  W.  MOSS. 
Pros.  Attorney  of  the  St.  Louis  Court  of  Criminal  Correction.” 

MOTION  TO  QUASH. 

“In  the  St.  Louis  Court  of  Criminal  Correction. 

State  of  Missouri,  Plaintiff, 
vs. 

Parker  Distilling  Company,  a Corporation,  Defendant. 

Charged  with  manufacturing  liquor  without  a license. 

Comes  now  the  defendant  in  the  above  entitled  cause  and 
moves  the  court  to  quash  the  information  heretofore  filed  in 
the  said  cause,  for  the  following  reasons,  to  wit: 

I. 

That  the  act  of  the  General  Assembly  of  Missouri,  ap- 
proved June  1,  1909,  and  entitled  “An  act  to  license  manu- 
facturers and  rectifiers  of  intoxicating  liquors,  and  wholesale 
and  retail  dealers  in  such  liquors,  except  wines  and  spirits 
produced  from  grapes  or  fruits  grown  in  the  State  of  Mis- 
souri, and  except  social,  commercial  or  other  clubs,  druggists, 
pharmacists  and  licensed  dramshop-keepers,  and  to  provide 


4 


penalties  for  a violation  thereof,”  upon  which  said  informa- 
tion is  based  is  unconstitutional,  inoperative  and  void ; because, 

First:  Said  act  is  in  violation  of  the  provisions  of  sec- 
tion 2 of  article  IV  of  the  Constitution  of  the  United  States, 
in  that  it  denies  to  the  citizens  of  other  states  the  privileges 
and  immunities  granted  to  the  citizens  of  the  State  of  Mis- 
souri thereunder. 

Second : Said  act  is  in  violation  of  the  provisions  of  the 
third  clause  of  section  8,  article  I of  the  Constitution  of  the 
United  States,  in  that  it  attempts  to  regulate  commerce  be- 
tween the  several  states  and  the  State  of  Missouri. 

Third:  Said  act  is  in  violation  of  the  second  clause  of 
section  10,  article  I of  the  Constitution  of  the  United  States,  in 
that  it  attempts  to  levy  an  impost  or  import  duty  or  tax  on  the 
products  of  the  several  states  coming  into  the  State  of  Mis- 
souri. 

Fourth:  Said  act  is  violative  of  the  Fifth  Amendment 
of  the  Constitution  of  the  United  States,  in  that  it  attempts  to 
deprive  the  citizens  of  the  State  of  Missouri  of  their  property 
without  due  process  of  law. 

Fifth : Said  act  is  violative  of  section  I of  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States,  in  that 
it  is  an  attempt  to  abridge  the  privileges  and  immunities  of 
citizens  of  the  United  States ; and,  further,  in  that  it  is  an  at- 
tempt to  deprive  citizens  of  the  several  states  and  of  the  State 
of  Missouri  of  their  property  without  due  process  of  law ; and, 
further,  that  it  denies  to  those  persons  who  come  within  its 
provisions  the  equal  protection  of  the  law. 

II. 

That  said  act  of  the  General  Assembly  of  Missouri,  ap- 
proved June  1,  1909,  entitled  as  above,  is  unconstitutional,  in- 
operative and  void,  because 

First : Said  act  is  violative  of  section  30,  article  2 of  the 
Constitution  of  the  State  of  Missouri,  in  that  the  enforcement 


5 


thereof  would  deprive  the  defendant  of  his  liberty  and  his 
property,  without  due  process  of  law. 

Second : Said  act  is  violative  of  section  28,  article  IV  of 
the  Constitution  of  the  State  of  Missouri,  in  that  it  contains 
more  than  one  subject;  also,  that  the  subject  of  the  same  is 
not  clearly  stated  in  its  title. 

Third : Said  act  is  violative  of  section  3,  article  X of  the 
Constitution  of  the  State  of  Missouri,  in  that  the  tax  levied 
under  the  provisions  of  said  act  is  not  uniform  upon  the  same 
class  of  subjects  within  the  territorial  limits  of  the  State. 

Fourth:  Said  act  is  violative  of  section  4,  article  X of 
the  Constitution  of  the  State  of  Missouri,  in  that  all  property 
in  the  State  subject  to  the  tax  imposed  by  the  said  act  is  not 
taxed  under  the  provision  of  said  act  in  proportion  to  the 
value  of  said  property. 

Fifth : Said  act  is  violative  of  section  7,  article  X of  the 
Constitution  of  the  State  of  Missouri,  in  that  it  undertakes  to 
exempt  property  from  taxation  in  contravention  of  said  con- 
stitutional provision. 

(Signed)  JOHNSON,  RULE  & ALLEN, 

Attorneys  for  Defendant.’’ 


6 


POINTS  AND  AUTHORITIES. 


I. 

IN  THE  DISCUSSION  OF  THE  CONSTITUTIONALITY 
OF  THE  ACT,  IT  IS  NECESSARY  TO  BEAR  IN 
MIND  THE  FACT,  THAT  THE  TRAFFIC  IN  INTOX- 
ICATING LIQUORS  IN  THE  STATE  OF  MISSOURI 
IS  DECLARED  BY  LAW  TO  BE  ILLEGAL.  IT  IS 
NOT  A PRIMARY,  NATURAL  OR  FUNDAMENTAL 
RIGHT,  BUT  IS  AN  OCCUPATION  WHICH  NO  ONE 
HAS  THE  RIGHT  TO  PURSUE  WITHOUT  A LI- 
CENSE. 

Beginning  with  the  decision  in  the  case  of  State  vs.  Aus- 
tin, unto  the  present  time,  the  appellate  courts  of  Missouri 
have  universally  held  that  no  one  has  the  primary  right  to  sell 
intoxicating  liquors  in  this  State.  That  such  a vocation  is  not 
a natural  right,  but  is  an  occupation  which  may  be  pursued 
when  the  person  has  first  received  the  privilege  or  license  so 
to  do  from  the  State.  That,  when  such  license  or  permit  is 
given,  it  does  not  constitute  a contract  between  the  State  and 
the  licensee,  in  which  the  latter  has  vested  rights,  but  is  sub- 
ject, at  all  times,  to  the  police  powers  of  the  State,  and  may  be 
revoked. 


State  vs.  Austin,  10  Mo.  591. 

State  vs.  Hudson,  13  App.  61. 

Higgins  vs.  Talty,  157  Mo.  287. 

State  vs.  Bixman,  162  Mo.  1.  c.  21,  22,  23. 

Black  on  Intoxicating  Liquors,  Secs.  51,  127, 128,  189. 


7 


The  liquor  traffic  is  not  recognized  as  a lawful  business, 
except  as  permitted  and  regulated  by  the  statutes  of  the  states. 
It  is  not  an  occupation  to  which  every  man  has  a natural 
right.  It  does  not  stand  on  the  same  level  before  the  law  as 
those  vocations  affecting  the  trade  and  commerce  of  the  coun- 
try. The  law  has  placed  a bar-sinister  upon  the  business  or 
occupation,  and  separated  it  from  the  natural  rights,  privi- 
leges and  immunities  of  the  citizen. 

Crowley  vs.  Christensen,  137  U.  S.  86. 

Justice  Field,  in  delivering  the  opinion  of  the  court  in  the 
above  case,  among  other  things,  said: 

“The  police  power  of  the  State  is  fully  compe- 
tent to  regulate  the  business,  to  mitigate  its  evils  or 
to  suppress  it  entirely.  There  is  no  inherent  right 
in  a citizen  to  thus  sell  intoxicating  liquors  by  retail ; 
it  is  not  a privilege  of  a citizen  of  the  State  or  of  a 
citizen  of  the  United  States.  The  manner  and  ex- 
tent of  regulation  rests  in  the  discretion  of  the  gov- 
erning authority.  That  authority  may  vest  in  such 
officers  as  it  may  deem  proper  the  power  of  passing 
upon  applications  for  permision  to  carry  it  on  and  to 
issue  lincenses  for  that  purpose.  It  is  a matter  of 
legislative  will  only.” 

The  principles  of  law  above  announced  apply  equally  to 
manufacturers  and  wholesale  dealers  in  intoxicating  liquors 
as  to  all  others  engaged  in  the  traffic. 

State  vs.  Finney,  178  Mo.  385. 


8 


II. 

ALL  STATUTES  REGULATING  THE  MANUFACTURE 
AND  SALE  OF  INTOXICATING  LIQUORS  ARE  EN- 
ACTED BY  VIRTUE  OF  THE  POLICE  POWER  OF 
THE  STATE.  EVERY  STATUTE,  STATE  OR  FED- 
ERAL, UPON  THE  SUBJECT  WHICH  HAS  BEEN 
HELD  CONSTITUTIONAL,  WAS  SUSTAINED  UP- 
ON THE  GROUND  THAT  IT  WAS  THE  PROPER 
EXERCISE  BY  THE  LEGISLATURE  OF  THE  PO- 
LICE POWER  OF  THE  STATE. 

The  authority  vested  in  the  Legislature  to  enact  legis- 
lation of  the  character  of  the  legislative  enactment  of  1909, 
and  to  impose  license  fees  upon  the  occupation  or  business 
is  one  which  falls  within  the  police  power  of  the  State. 
Judge  Gantt,  in  delivering  the  opinion  of  the  court  in  the  case 
of  State  vs.  Bixman,  involving  the  beer  inspection  law,  quoted 
approvingly  from  the  case  of  State  ex  rel.  vs.  Hudson,  78  Mo. 
302,  as  follows : 

“Such  laws  (i.  e.  license  laws)  are  regarded  as 
police  regulations,  established  by  the  Legislature  for 
the  prevention  of  intemperance,  pauperism  and 
crime,  and  for  the  abatement  of  nuisances,  and  are 
not  regarded  as  an  exercise  of  the  taxing  power. 
Pursuits  that  are  pernicious  or  detrimental  to  public 
morals  may  be  prohibited  altogether  or  licensed  for 
a compensation  to  the  public/ ’ 

Again,  in  what  is  known  as  the  License  Cases,  decided  in 
the  Supreme  Court  of  the  United  States,  12  Law  Edition, 
page  314,  Justice  Grier  said: 

“It  is  not  necessary  for  the  sake  of  justifying 
the  State  legislation  now  under  consideration,  to  ar- 


9 


ray  the  appalling  statistics  of  misery,  pauperism  and 
crime,  which  have  their  origin  in  the  use  or  abuse  of 
ardent  spirits.  The  police  power,  which  is  exclusive- 
ly in  the  State,  is  alone  competent  to  the  correction 
of  these  great  evils,  and  all  measures  of  restraint  or 
prohibitions  necessary  to  effect  the  purpose,  are  with- 
in the  scope  of  that  authority.  There  is  no  conflict 
of  power,  or  of  legislation,  as  between  the  states  and 
the  United  States;  each  is  acting  within  its  sphere 
and  for  the  public  good.” 

Chief  Justice  Taney,  in  his  opinion  involving  the  license 
cases  above  referred  to,  used  the  following  language : 

‘ ‘ And  if  any  state  deems  the  retail  and  internal 
traffic  in  ardent  spirits  injurious  to  its  citizens  and 
calculated  to  produce  idleness,  vice  or  debauchery.  I 
see  nothing  in  the  Constitution  of  the  United  States 
to  prevent  it  from  regulating  and  restraining  the 
traffic  or  from  prohibiting  it  altogether,  if  it  thinks 
proper.  Upon  that  subject,  each  state  must  decide 
for  itself.  ’ ’ 

These  principles  have  been  so  often  announced  by  the 
State  and  Federal  Courts  they  are  now  accepted  by  all  with- 
out challenge  or  dispute. 

The  police  power  is  not  susceptible  of  an  exact  unyield- 
ing definition.  Cyc.,  in  volume  8,  page  683,  defines  it  as  fol- 
lows: 

‘ ‘ Police  power  is  the  name  given  to  that  inherent 
sovereignty  which  it  is  the  right  and  duty  of  the  gov- 
ernment, or  its  agents,  to  exercise  whenever  public 
policy,  in  a broad  sense  demands,  for  the  benefit  of  so- 
ciety at  large,  regulations  to  guard  its  morals,  safety, 
health,  order,  or  to  insure  in  any  respect  such  eco- 


10 


nomic  conditions  as  an  advancing  civilization  of  a 
highly  complex  character  requires.” 

Judge  Marshall,  in  expressing  the  opinion  of  the  court  in 
the  case  of  State  ex  rel.  vs.  Mercantile  Company,  184  Mo.  1.  c. 
184,  said: 

“In  the  exercise  of  its  police  power  the  State 
may  pass  any  law  which  is  designed  to  suppress  or 
punish  a wrong,  to  mitigate  an  evil,  to  preserve  the 
peace,  health,  morals  or  order,  and  the  general  wel- 
fare of  the  community.  That  no  person  has  an  ab- 
solute right  to  engage  in  any  business  which  contra- 
venes these  purposes.” 

From  its  very  nature,  the  police  power  is  a power  to  be 
exercised  within  wide  limits  of  legislative  discretion ; and  if  a 
statute  appears  to  be  within  the  apparent  scope  of  this  power, 
it  would  be  a usurpation  of  jurisdiction  for  the  courts  to  in- 
quire into  its  wisdom  and  policy  or  to  undertake  to  substitute 
their  discretion  for  that  of  the  Legislature,  If  the  Legisla- 
ture has  acted  within  the  police  power  of  the  State,  then*  the 
forum  stands  closed  to  the  courts  to  inquire  into  the  wisdom 
and  policy  of  the  law  or  the  discretion  of  the  Legislature  in 
exercising  that  authority. 

State  vs.  Addington,  12  Mo.  App.  1.  c.  221. 

State  vs.  Beattie,  16  Mo.  App.  131. 

Cearfoss  vs.  State,  44  Md.  403. 


11 


III. 

THE  ACT  OF  THE  LEGISLATURE,  APPROVED  JUNE 
1ST,  1909,  PROVIDING  LICENSES  FOR  THOSE  EN- 
GAGED IN  THE  BUSINESS  OR  OCCUPATION  OF 
MANUFACTURING,  RECTIFYING  OR  SELLING 
INTOXICATING  LIQUORS  IS  PRESUMED  TO  BE 
CONSTITUTIONAL.  THE  LEGISLATURE  IS  PRE- 
SUMED TO  HAVE  BEEN  AS  CAREFUL  TO  OB- 
SERVE THE  REQUIREMENTS  OF  THE  CONSTI- 
TUTION IN  ENACTING  THE  LAW  AS  THE  COURTS 
IN  APPLYING  IT. 

The  act  in  question  is  presumed  to  be  constitutional  un- 
til the  contrary  is  clearly  shown.  It  is  the  duty  of  the  court 
no#  only  to  presume  that  the  act  is  constitutional  in  reference 
to  each  single  objection  raised  by  the  motion  to  quash,  but  as 
to  all  of  them.  It  is  the  duty  of  the  court  to  adopt  such  a con- 
struction of  the  act  as  a whole  as  will  give  it  life  and  preserve 
its  vitality.  Some  of  the  questions  raised  as  to  the  constitu- 
tionality of  the  act,  if  sustained,  would  prove  fatal,  and  some 
are  of  minor  importance,  and  from  the  effects  of  which  the  act 
would  survive. 

In  speaking  of  the  presumption  which  the  court  must 
indulge,  Judge  Fox,  in  the  case  of  State  ex  parte  Loving,  178 
Mo.  1.  c.  203,  speaking  for  the  court,  said: 

“In  the  solution  of  the  proposition  before  us, 
we  must  keep  in  view  the  familiar  principle  that,  if 
there  is  a reasonable  doubt  existing  as  to  the  con- 
stitutionality of  the  act,  such  doubt  must  be  re- 
solved in  favor  of  its  validity.  This  principle  is  so 
well  recognized  that  the  mere  statement  of  it  is  suf- 
ficient. ’ ’ 


12 


In  the  case  of  State  ex  rel.  vs.  Aloe,  152  Mo.  1.  c.  477,  it 
was  very  clearly  and  tersely  stated  by  the  court,  as  follows : 

“When  the  validity  of  a statute  is  drawn  in 
question,  the  court  approaches  the  subject  as  one  in- 
volving the  gravest  responsibility,  and  to  be  con- 
sidered with  the  greatest  caution.  The  General  Ms- 
sembly  is  presumed  to  have  been  as  careful  to  ob- 
serve the  requirements  of  the  Constitution  in  enact- 
ing the  statute  as  the  court  in  applying  it.  Every 
presumtion  is  to  be  indulged  in  favor  of  the  validity 
of  the  act,  and  that  presumption  is  to  continue  until 
its  invalidity  is  made  to  appear  beyond  a doubt.” 

To  the  same  effect  are  the  following  cases: 

State  vs.  Cantwell,  179  Mo.  1.  c.  261. 

State  vs.  Aloe,  152  Mo.  1.  c.  477. 

State  ex  rel.  vs.  Railroad,  48  Mo.  1.  c.  471. 

State  ex  rel.  vs.  Pike  County,  144  Mo.  1.  c.  280. 

Where  there  is  a doubt  as  to  the  constitutionality  of  an 
act,  that  doubt  will  be  resolved  in  favor  of  the  validity  of  the 
enactment. 

Ex  parte  Loving,  178  Mo.  203. 

State  vs.  Cantwell,  179  Mo.  261. 

County  vs.  Griswold,  58  Mo.  192.- 
State  vs.  Able,  65  Mo.  357. 

This  presumption  as  to  the  constitutionality  of  an  act  ap- 
plies to  the  Federal  laws  as  well  as  to  the  statutes  of  a state, 
and  it  is  the  duty  of  both  the  State  and  Federal  courts  to  in- 
dulge the  presumption. 


13 


IY. 

THE  STATE  HAS  THE  POWER  TO  PROHIBIT  OR  TO 
REGULATE  AND  IMPOSE  CONDITIONS  UPON 
PERSONS  WHO  DESIRE  TO  ENGAGE  IN  THE 
TRAFFIC  OF  INTOXICATING  LIQUORS.  IN  DO- 
ING SO,  THE  STATE  DEALS  NOT  WITH  THE  IN- 
DIVIDUAL, BUT  WITH  MEN  IN  THEIR  RELA- 
TIONS TO  EACH  OTHER. 

It  is  no  longer  an  open  question  that  the  State  can  either 
prohibit  or  regulate  traffic  in  intoxicating  liquors.  The  Leg- 
islature can  classify  the  different  kinds  of  liquor  dealers  and 
impose  differential  taxes  upon  each  class.  A difference  can 
be  made  between  a manufacturer  and  a wholesaler,  and  it  has 
been  held  proper  classification. 

State  vs.  Bixman,  162  Mo.  1.  c.  37. 

Black  on  Intoxicating  Liquors,  Secs.  31,  39,  46,  55, 
107,  108,  109. 

It  is  well  settled  in  Missouri  that  the  State  has  full  con- 
stitutional power  to  impose  a license  fee  or  license  tax  upon 
the  business  of  liquor  dealers  and  manufacturers,  wholesalers 
as  well  as  retailers.  In  other  words,  it  is  a license  fee  or 
license  tax  upon  the  occupation  or  business . It  is  the  exer- 
cise of  the  State’s  power  in  limiting  and  restraining  a traffic 
which  the  courts  have  said  is  dangerous  to  the  best  interests 
of  the  community.  It  is  not  the  exercise  of  the  State’s  taxing 
power,  but  of  its  police  power.  The  fact  that  revenue  may 
follow  is  of  no  consequence  in  the  eyes  of  the  law. 

For  this  reason,  and  also  because  it  is  a license  fee  or 
license  tax  upon  the  business  or  traffic  rather  than  a tax  upon 
the  property  invested  in  it,  the  validity  of  such  a law  is  to  be 
tested;  not  by  its  conformity  to  the  constitutional  restriction 


14 


upon  the  taxing  power,  but  as  to  its  being  uniform  in  its  oper- 
ation upon  manufacturers  or  dealers  of  the  same  class. 

✓ 

Black  on  Intoxicating  Liquors,  Sec.  55. 

State  vs.  Bixman,  162  Mo.  1.  c.  36,  37. 

Of  the  various  systems  of  legislation  for  regulating  the 
traffic  in  intoxicating  liquors,  the  one  which  is  based  upon  the 
granting  of  licenses  is  the  one  prevailing  in  the  greatest  num- 
ber of  states.  The  license  laws  have  rarely  been  held  un- 
constitutional, by  reason  of  the  fact,  it  is  not  an  exercise  of 
the  taxing  power  of  the  State,  but  of  its  police  power ; and 
by  reason  of  the  further  fact,  the  validity  of  such  laws  is  not 
measured  by  their  conformity  to  the  constitutional  restriction 
as  to  the  taxation  of  property,  but  as  to  its  operation,  being 
uniform  upon  the  same  class. 

Black  on  Intoxicating  Liquors,  Secs.  46,  55,  109,  114, 
115. 

State  vs.  Austin,  10  Mo.  591. 

State  vs.  Lemp,  16  Mo.  389. 

State  vs.  Searcy,  20  Mo.  489. 

State  vs.  Hudson,  78  Mo.  302. 

Higgins  vs.  Talty,  157  Mo.  280. 

State  vs.  Bixman,  162  Mo.  1. 

Where  the  Legislature  has  power  to  impose  a license  fee 
or  license  tax  on  an  occupation,  it  has  the  added  power  to 
make  it  a penal  offense  for  any  person  to  engage  in  that  occu- 
pation without  first  paying  the  license  fee  or  license  tax  placed 
thereon. 


Black  on  Intoxicating  Liquors,  Secs.  58,  107. 


15 


Judge  Burgess,  in  his  opinion  in  the  case  of  State  vs. 

Finney,  178  Mo.  1.  c.  391,  said: 

“As  to  the  right  of  the  State  to  absolutely  pro- 
hibit the  manufacture  and  sale  of  intoxicating  liquors 
within  its  borders,  and  that  such  a prohibition  is  a 
lawful  exercise  of  its  police  power,  and  is  not  in  any 
way  objectionable  upon  constitutional  grounds,  is  no 
longer  a debatable  question.” 


The  question  is  well  settled  that  the  State  can  prohibit, 
under  its  police  power,  both  the  manufacture  and  the  sale  of 
intoxicating  liquors.  If  it  can  prohibit,  it  can  regulate.  If 
it  can  regulate,  it  can  license  the  traffic.  If  it  can  license  the 
traffic,  it  can  prescribe  the  conditions.  If  it  can  prescribe  the 
conditions,  the  conditions  cannot  be  questioned  if  the  opera- 
tion is  uniform  upon  the  same  classes. 

Black  on  Intoxicating  Liquors,  Sec.  37. 

(Also,  cases  cited  above.) 


Y. 


THERE  IS  A WIDE  DIFFERENCE  BETWEEN  TAXA- 
TION AND  THE  LICENSING  OF  A BUSINESS  OR 
OCCUPATION.  A BUSINESS  MAY  BE  LICENSED 
AND  NOT  BE  TAXED,  OR  IT  MAY  BE  TAXED 
AND  YET  NOT  LICENSED.  THERE  IS  NO  NECES- 
SARY CONNECTION  BETWEEN  THEM. 

The  act  of  the  Legislature  attacked  by  defendant’s  mo- 
tion to  quash  is  better  understood,  and  the  questions  pre- 
sented easier  of  solution,  if  the  court  first  ascertains  the  dif- 
ference between  taxation  and  the  licensing  of  a business  or 
occupation.  The  rule  laid  down  in  Black  on  Intoxicating 


16 


Liquors,  section  108,  and  which  is  supported  by  the  utterances 
of  the  courts  of  this  and  other  jurisdictions,  is  as  follows : 

‘ ‘ If  the  business  is  under  no  legal  condemnation, 
but  is  open  to  all  persons  to  engage  in,  then  the  im- 
position of  a tax  upon  it  cannot  be  regarded  as  a 
license,  because,  by  universal  consent,  a license  is 
defined  as  a permit  to  do  some  act  or  engage  in  some 
occupation  which,  without  such  permission  would  be 
illegal.  A license  law,  therefore,  assumes  the  ille- 
gality of  the  business,  and  denounces  penalties  upon 
those  who  pursue  it  without  previously  protecting 
themselves  by  procuring  a license.” 

In  Missouri  the  traffic  of  intoxicating  liquors  is  under 
legal  condemnation,  and  without  a permission  to  sell,  would 
be  illegal,  as  has  been  stated  in  the  beginning.  Therefore, 
being  under  legal  condemnation,  the  traffic  is  not  open  to  all 
persons,  and  by  reason  of  that  fact,  the  permission  to  engage 
in  the  business  is,  as  a matter  of  law,  a license. 

Having  defined  what  is  regarded  as  a license  law,  the 
same  author,  in  the  same  section,  defines  taxation,  as  follows : 

“ Taxation,  on  the  other  hand,  assumes  the  le- 
gality of  the  business  for  any  who  may  choose  to 
pursue  it,  but  imposes  a burden  for  the  public  bene- 
fit upon  those  engaging  in  it.  The  case  is  not  altered 
by  the  fact  that  payment  of  the  tax  is  made  a condi- 
tion precedent  to  the  right  to  engage  in  the  busi- 
ness.’? 

This  dictinction  between  taxation  and  the  licensing  of  a 
business  or  occupation  carries  us  to  the  proposition  laid  down 
in  the  first  paragraph  of  this  brief,  to  wit,  that  the  license 
necessary  to  the  traffic  in  intoxicating  liquors,  was  a require- 
ment of  the  law  which  did  not  infringe  upon  a primary, 


17 


natural  or  fundamental  right  of  the  citizen.  The  traffic  un- 
der the  laws  of  the  State  is  illegal,  and  not  open  to  all  with- 
out the  securing  of  a permit  or  license  to  conduct  the  business 
and  that  permit  can,  under  the  police  power,  be  forfeited  at 
any  time.  Such  licenses,  when  issued,  are  merely  permits, 
and  are  not  contracts  between  the  State  and  the  licensee  in 
which  the  latter  has  vested  rights. 

Black  on  Intoxicating  Liquors,  Secs.  127,  128. 

State  vs.  Bixman,  supra. 

Higgins  vs.  Talty,  157  Mo.  1.  c.  287. 

The  defendant’s  property  is  not  taxed,  and  its  whole  ar- 
gument is  out  of  tune  with  the  facts  and  the  law  involved  in 
considering  the  act  before  the  court.  The  defendant  argues 
and  presents  its  case  on  the  theory  that  the  primary,  natural 
and  inalienable  rights  given  to  the  citizen,  and  guaranteed 
under  the  Constitution  of  the  State  and  the  Nation,  are  being 
infringed  upon  and  denied  to  it.  It  overlooks  one  of  the  keys 
to  the  situation,  that  is,  that  it  has  no  right  at  all  to  engage 
in  and  carry  on  its  business  in  the  traffic  of  liquor  in  this 
State  without  a license.  It  has  no  primary  or  fundamental 
rights.  It  has  no  inalienable  rights  to  be  infringed  upon  or 
to  be  denied  to  it.  It  can  only  engage  in  the  business  by  and 
through  the  permission  of  the  State.  The  Legislature  may 
give  or  withhold  this  authority  or  permission  at  its  pleasure, 
and  no  one  can  be  heard  to  complain. 

The  permission,  or  license,  necessary  to  conduct  the  busi- 
ness, is  held  not  as  a fundamental  or  absolute  right,  but  as  a 
favor,  which  must  be  received  by  it  upon  such  terms  and  con- 
ditions, and  subject  to  such  burdens  and  inconvenience  a’s 
the  State  thinks  proper  to  impose  and  the  licensee  elects  to 
accept.  Different  from  all  other  vocations,  which  it  is  the 
right  of  a citizen  to  follow  undisturbed  by  legislative  inter- 


P— 2 


18 


ference,  the  person  who  engages  in  the  liquor  traffic  within 
the  limitations  above  indicated,  must  do  so  subject  to  all  the 
disadvantages  which  may  be  prescribed  by  the  law-making 
power  permitting  or  licensing  the  business. 

State  vs.  Bixman,  162  Mo.  1.  c.  23,  24,  27,  30  and  31. 

i 

Black  on  Intoxicating  Liquors,  Secs.  108  and  179. 

The  above  and  foregoing  extracts  serve  the  purpose  of 
clearly  illustrating  and  establishing  the  fact,  that  the  burdens 
imposed  by  the  act  under  review,  are  those  of  a license  upon 
the  occupation  or  business,  and  the  act  must  therefore  be 
measured  by  the  rules  and  the  law  applying  to  such  enact- 
ments in  construing  their  constitutionality.  The  defendant 
proceeds  entirely  on  the  theory  that  the  act  imposes  a tax 
upon  its  property.  The  State  proceeds  upon  the  theory  that 
the  act  imposes  a license  fee  upon  the  occupation  or  business 
of  the  defendant.  That  revenue  may  follow  is  not  an  element 
of  concern  in  passing  upon  the  act,  and  this  the  courts  have 
declared  time  and  time  again. 

The  defendant  having  made  a wrong  diagnosis  of  the  case, 
is  wrong  in  its  treatment.  The  legal  shafts  fall  wide  of  the 
mark. 


VI. 

THE  DEFENDANT  SEEKS  TO  APPLY  TO  THIS,  A LI- 
CENSE LAW,  THE  RULE  WHICH  MIGHT  APPLY 
TO  AN  ACT  PURELY  FOR  REVENUE,  THAT  IS,  A 
LAW  LEVYING  A TAX  UPON  THE  PROPERTY.  IT 
LEAVES  OUT  OF  VIEW  THE  FACT,  THAT  THE 
ENACTMENT  UNDER  CONSIDERATION  IS  A LAW 
WITHIN  THE  POLICE  POWER  OF  THE  STATE 
AND  DIRECTED  AGAINST  A TRAFFIC  WHICH  IS 
ITSELF  ILLEGAL.  A TRAFFIC  WHICH  IS  CON- 
DUCTED, NOT  AS  A PRIMARY,  NATURAL  OR 


19 


FUNDAMENTAL  RIGHT,  AS  IS  THE  CASE  IN  THE 
ARTERIES  OF  COMMERCE,  BUT  IS  CONDUCTED 
UNDER  A SPECIAL  PERMIT  OR  LICENSE  IS- 
SUED BY  THE  STATE  IN  THE  EXERCISE  OF  ITS 
POLIC  POWER. 

The  defendant,  in  its  brief,  does  not  observe  the  distinc- 
tion between  the  law  which  is  a tax  upon  the  property,  and 
the  law  which  is  a license  upon  the  business  or  occupation, 
which  said  business  is  by  other  laws,  declared  to  be  illegal. 
The  rule  applicable  to  the  one  class  is  out  of  tune  when  ap- 
plied to  the  other.  The  fallacy  of  the  defendant  lies  in  as- 
suming that  the  business  or  occupation  of  traffic  in  intoxicat- 
ing liquors  is  not  illegal,  but  is  open  to  all  persons  to  engage 
in.  That  it  is  under  no  legal  condemnation,  and  that  the  law 
has  erected  no  barriers  preventing  persons  from  engaging  in 
same  without  securing  from  the  State  permission  so  to  do. 

The  following,  taken  from  the  opinion  in ' the  Bixman 
case,  162  Mo.  1.  c.  23,  is  helpful  in  illustrating  and  impressing 
the  State’s  contention  upon  the  court: 

“And  herein,  as  this  court  conceives,  consists 
the  chief  defect  and  fallacy  of  the  position  as- 
sumed and  argued  with  so  much  ingenuity  and  re- 
search by  the  learned  counsel  for  the  respondent. 
They  forget,  as  it  appears  to  us,  that  the  subject  with 
which  we  are  dealing,  is  not  one  of  those  pertaining 
to  the  primary  and  fundamental  rights  of  the  citizen, 
and  as  to  which  no  unlimited  control  has  been  vested 
in  the  Legislature.  They  seem  to  overlook  this  prin- 
cipal ground  of  distinction  and  argue  as  if  the  ac- 
tion of  the  Legislature  was  an  infringement  of  the 
natural  and  inalienable  rights  of  the  citizen,  de- 
clared and  guaranteed  by  the  Constitution  instead 
of  the  exercise  of  the  discretionary  power  against 
which  no  limit  has  been  set  by  that  instrument.  And 


20 


this,  we  think,  is  the  very  turning  point  of  the  con- 
troversy, namely,  that  the  Legislature  may  grant  or 
withhold  authority  to  sell  at  its  pleasure,  and,  grant- 
ing such  authority,  it  is  held  by  the  licensee  at  the 
mere  pleasure  or  grace  of  the  body  granting  it.  It 
is  held  by  him,  not  as  a matted  of  primary  and  ab- 
solute right,  but  ars  a favor,  which,  like  all  favors, 
must  be  received  upon  such  terms  and  conditions, 
and  subject  to  such  burdens  and  inconveniences  as 
the  donor  thinks  proper  to  impose  and  the  donee 
elects  to  accept. 7 ’ 

“Unlike  other  trades  and  employments  which 
it  is  the  right  of  the  citizen  to  pursue,  undisturbed 
by  arbitrary  legislative  interference  and  control,  the 
person  who  engages  in  this  must,  within  the  limita- 
tions above  indicated,  do  so  subject  to  such  disad- 
vantages as  may  be  presented  by  the  law-making 
power  which  authorizes  it.  ’ ’ 

On  page  24  of  the  same  report,  the  court  says : 

“We  construe  the  act  in  view  of  all  its  parts, 
and  in  connection  with  other  license  laws  of  this 
State,  and  hold  that  the  fee  exacted  is  the  price  which 
the  State  demands  for  the  privilege  of  doing  the 
business  of  brewing  and  selling  beer  and  malt  liquors 
in  this  State,  and  it  is  immaterial  by  what  name  it 
is  called,  and,  being  such,  is  not  a tax  upon  property 
within  the  meaning  of  our  Constitution,  etc.” 

The  State,  by  statute,  instead  of  prohibiting  the  traffic 
altogether,  permits  it  under  certain  conditions.  When  the 
State  has  prescribed  the  conditions,  the  person  who  desires  to 
engage  in  the  business  under  those  conditions  cannot,  when  he 
has  received  his  permit,  question  the  conditions.  The  condi- 


21 


tions  but  represent  the  'price  which  the  State  has  demanded 
for  the  privilege  or  permit  of  engaging  in  the  lousi- 
ness. The  conditions  imposed  must  simply  be  uniform  in 
their  operation  upon  manufacturers  or  dealers  of  the  same 
class. 

The  person  desiring  to  engage  in  the  traffic  under  the 
conditions  prescribed  by  the  State  cannot  question  the  con- 
ditions other  than  they  shall  be  uniform  upon  the  same  class. 
The  State  having  the  right  to  prescribe  the  conditions  upon 
which  the  license  may  be  secured,  and  the  State  having  the 
right  to  refuse  to  permit  the  business  to  be  conducted  at  all, 
can  say  to  the  person  who  desires  to  engage  in  the  traffic,  if 
you  do  not  care  to  engage  in  the  business  upon  the  prescribed 
terms,  you  shall  not  act  at  all,  and  the  State  will  withdraw 
the  conditions  suffering  the  business  to  be  conducted.  In 
other  words,  the  State  can  grant  or  refuse  the  favor , just  as 
it  may  desire. 

Black  on  Intoxicating  Liquors,  Sec.  55. 

State  vs.  Bixman,  supra. 

VII. 

THE  STATE  PROPOSES  NOW  TO  MEET  SINGLY, 
EACH  GROUND  PRESENTED  BY  THE  DEFEND- 
ANT IN  ITS  MOTION  TO  QUASH,  AS  TO  WHY  THE 
MOTION  SHOULD  BE  SUSTAINED  AND  THE  ACT 
DECLARED  UNCONSTITUTIONAL. 

The  defendant,  in  its  motion  to  quash  the  information, 
and  in  its  brief  filed  in  support  of  same,  challenges  the  con- 
stitutionality of  the  act  for  ten  special  reasons.  It  is  charged 
that  the  law  contravenes  five  provisions  of  the  State  Consti- 
tution and  five  provisions  of  the  Federal  Constitution. 

The  provisions  of  the  State  and  Federal  Constitutions 
which  the  motion  to  quash  charges  the  law  violates,  selecting 


22 


our  own  order  for  the  more  logical  presentation  of  the  ques- 
tions, are  as  follows : 

1st.  Because  said  act  is  violative  of  section  28,  article 
IV  of  the  Constitution  of  the  State  of  Missouri,  in  that  it 
contains  more  than  one  subject;  also,  that  the  subject  of  the 
same  is  not  clearly  expressed  in  its  title’. 

2nd.  Because  the  act  is  a revenue  measure  and  under- 
takes to  impose  taxes  on  occupations,  persons  and  property, 
which  are  not  uniform  on  the  same  class  or  classes  of  subjects, 
within  the  territoial  limits,  of  the  State,  and  is,  therefore, 
violative  of  section  3 of  article  X of  the  Constitution  of  Mis- 
souri. 

3rd.  Because  said  act  violates  section  4,  article  X of  the 
Constitution  of  Missouri,  in  that  all  property  in  the  State 
subject  to  the  tax  imposed  by  the  said  act  is  not  taxed  under 
the  provisions  of  said  act  in  proportion  to  the  value  of  said 
property. 

4th.  Because  said  act  violates  sections  6 and  7 of  article 
X of  the  Constitution  of  the  State  of  Missouri,  in  that  it  un- 
dertakes to  exempt  property  from  taxation  in  contravention 
of  said  constitutional  provision. 

5th.  Because  said  act  violates  section  30,  article  II  of 
the  Constitution  of  Missouri,  in  that  the  enforcement  thereof 
would  deprive  the  defendant  of  its  liberty  and  its  property 
without  due  process  of  law. 

6th.  Because  said  act  violates  the  Fifth  Amendment  of 
the  Constitution  of  the  United  States,  in  that  it  attempts  to 
deprive  the  citizens  of  the  State  of  Missouri  of  their  property 
without  due  process  of  law. 

7th.  Because  said  act  violates  section  1 of  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United  States, 
in  that  it  attempts  to  abridge  the  privileges  and  immunities  of 
citizens  of  the  United  States;  and;  further,  in  that  it  is  an 
attempt  to  deprive  the  citizens  of  the  several  states  and  of  the 


23 


State  of  Missouri  of  their  property,  without  due  process  of 
law;  and,  further,  that  it  denies  to  those  persons  who  come 
within  its  provisions  the  equal  protection  of  the  law. 

8th.  Because  said  act  is  in  violation  of  the  second  clause 
of  section  10,  article  I,  of  the  Constitution  of  the  United 
States,  in  that  it  attempts  to  levy  an  impost  or  import  duty  or 
tax  on  the  products  of  the  several  states  coming  into  the  State 
of  Missouri. 

9th.  Because  said  act  violates  the  provisions  of  the  third 
clause  of  section  8,  article  I of  the  Constitution  of  the  United 
States,  in  that  it  attempts  to  regulate  commerce  between  the 
several  states  and  the  State  of  Missouri. 

10th.  Because  said  act  violates  the  provisions  of  section 
2 of  article  IV  of  the  Constitution  of  the  United  States,  in 
that  it  denies  to  the  citizens  of  other  states  the  privileges  and 
immunities  granted  to  the  citizens  of  the  State  of  Missouri 
thereunder. 

Each  one  of  the  above  grounds  and  reasons  set  forth  in 
the  motion  to  quash  will  be  taken  up  and  answered  singly  in 
the  following  portion  of  the  brief,  beginning  with  the  first  ob- 
jection and  ending  with  the  tenth. 


21 


ARGUMENT  AND  BRIEF. 

SPECIAL  CHALLENGES  CONSIDERED  AND  AN- 
SWERED. 


I. 

THE  ACT  DOES  NOT  VIOLATE  SECTION  28,  ARTICLE 
IV  OF  THE  CONSTITUTION  OF  THE  STATE  OF 
MISSOURI,  AS  CHARGED  IN  THE  FIRST  SPECI- 
FICATION THAT  THE  BILL  CONTAINS  MORE 
THAN  ONE  SUBJECT,  AND  THAT  THE  SUBJECT 
IS  NOT  CLEARLY  EXPRESSED  IN  THE  TITLE. 

The  charge  that  the  title  to  the  act  contravenes  section 
28  of  article  IV  of  the  Constitution  of  Missouri  is  a common 
ground,  which  is  urged  in  every  attack  on  the  constitution- 
ality of  a legislative  enactment.  The  authorities  upon  this 
proposition,  cited  by  counsel  for  defendant,  serve  no  useful 
purpose  in  passing  upon  the  question  here.  Each  case,  each 
title  to  a bill,  must  be  governed  and  adjudged  solely  under 
its  own  peculiar  reading,  provisions  and  facts.  The  citing  of 
special  cases  as  to  special  titles  to  bills  which  have  been  held 
unconstitutional,  aside  from  the  general  rules,  are  not  helpful 
unless  they  passed  upon  similar  titles  and  similar  laws. 

In  passing  upon  questions  of  this  character,  the  courts, 
without  exception,  have  laid  down  the  general  rule,  which  is 
as  follows: 

“If  any  matter  contained  in  a statute  be  ob- 
jected to  as  not  referred  to  in  the  title,  or  that  the 
bill  contains  more  than  one  subject,  the  objection 


25 


urged  will  not  be  held  well  taken,  if  the  clause  or 
section  to  which  objection  is  raised  be  germane  to  the 
subject  treated  of  in  the  title.” 

State  vs.  Mead,  71  Mo.  1.  c.  286. 

State  vs.  Bixman,  162  Mo.  1.  c.  19. 

The  title  to  the  act  under  consideration,  is  found  on  page 
654,  Laws  1909,  and  reads  as  follows : 

“An  act  to  license  manufacturers  and  rectifiers 
of  intoxicating  liquors  and  wholesale  and  retail 
dealers  in  such  liquors,  except  wines  and  spirits  pro- 
duced from  grapes  or  fruits  grown  in  the  State  of 
Missouri,  and  except  social,  commercial  or  other  clubs 
and  druggists  and  pharmacists  and  licensed  dram- 
shop-keepers,  and  to  provide  penalties  for  a vloia- 
tion  thereof.” 

There  is  not  a provision  in  the  entire  bill  which  is  not 
germane  to  the  title  of  this  act.  The  constitutional  provision 
does  not  require,  under  the  holdings  of  the  courts,  the  title  to 
set  out  each  and  every  provision  contained  in  the  bill.  If  this 
were  true,  the  title  would  be  as  lengthy  and  specific  as  the 
bill  itself.  All  that  is  necessary  is  that  the  provisions  of  the 
bill  be  germane  to  the  matter  expressed  in  the  title.  The 
title  cannot  be  a complete  index  to  the  bill.  In  the  case  of 
the  City  of  St.  Louis  vs.  Weitzel,  130  Mo.  1.  c.  616,  Judge 
Sherwood,  in  speaking  for  the  court  upon  this  subject,  said: 

“The  evident  object  of  the  provisions  of  the  or- 
ganic law  relative  to  the  title  of  an  act  was  to  have 
the  title  like  a guide  board,  indicate  the  general  con- 
tents of  the  bill,  and  contain  but  one  general  subject 
which  might  be  expressed  in  a few  or  greater  num- 
ber of  words.  If  those  words  only  constitute  one 


26 


general  subject ; if  they  do  not  mislead  as  to  what  the 
bill  contains;  if  they  are  not  designed  as  a cover  to 
vicious  and  incongruous  legislation,  then  the  title  can 
stand  on  its  own  merits,  is  an  honest  title,  and  does 
not  impinge  on  constitutional  prohibitions.  ’ ’ 

Measured  by  this  rule,  which  is  reaffirmed  by  the  court 
in  the  case  of  State  vs.  Bengsch,  170  Mo.  1.  c.  at  105,  the  title 
to  the  bill  under  consideration  is  sufficient.  It  has  but  one 
general  subject,  that  is,  the  licensing  of  the  manufacturers  and 
rectifiers  of  intoxicating  liquors  and  wholesale  and  retail 
dealers  therein,  and  provides  penalties  for  a violation  thereof. 
The  title  indicates  the  general  contents  and  contains  but  one 
general  subject.  This  could  be  done  in  a few  words  as  well  as 
in  a multiplicity  of  words.  There  is  no  necessity  of  being  ver- 
bose. It  cannot  be  said  that  the  title  to  the  bill  is  misleading. 
It  cannot  be  said  it  is  designed  as  a cover  to  vicious  and  in- 
congruous legislation. 

The  title  to  the  bill  conforms  to  the  constitutional  pro- 
vision, and  is  not  even  susceptible  of  criticism.  Judge  Wag- 
ener,  in  delivering  the  opinion  of  the  court  in  the  case  of 
State  vs.  Miller,  45  Mo.  495,  in  speaking  of  a bill,  the  title  to 
which  provided  it  was  an  act  to  prevent  the  issuing  of  false 
receipts  or  bills  of  lading,  and  to  punish  fraudulent  transfers 
of  property  by  warehousemen,  wharfingers  and  others,  said: 

“Now,  the  nature  and  object  of  the  act  is  clearly 
defined  in  the  title.  It  is  to  prevent  the  issue  of 
false  receipts  or  bills  of  lading,  and  to  punish  fraud- 
ulent transfers  of  property  by  warehousemen, 
harfingers  and  others.  By  a fair  construction,  it 
relates  to  a class  of  offenses  of  a kindred  character, 
all  connected,  blended,  and  germane.  The  act  shows 
clearly  that  its  object  and  aim  was  to  strike  at  a 
whole  class  of  cases  and  remedy  an  existing  evil; 


27 


and  whilst  warehousemen  and  wharfingers  are 
especially  enumerated  in  the  title,  others  are  spoken 
of.  A glance  at  the  title  would  naturally  show  what 
was  to  be  found  in  the  law.” 

Measured  then  by  this  judicial  pronouncement  the 
license  act  of  1909,  is  sufficient. 

Again  Justice  Henry  in  speaking  upon  the  same  subject 
in  the  case  of  State  vs.  Rrassfield,  81  Mo.  1.  c.  162,  wherein 
the  title  to  a bill  was  challenged  by  reason  of  two  bills  having 
beeh  consolidated  and  a substitute  passed  for  the  two,  said: 

“Chapter  24  of  the  Revised  Statutes,  com- 
mencing with  section  1227,  and  ending  with  section 
2119  inclusive,  was  passed  as  one  bill,  and  embraces 
the  entire  subject  o£  crime  and  criminal  procedure 
and  there  is  nothing  in  the  point  that  the  constitu- 
tional provision  that  the  subject  of  each  bill  shall  be 
clearly  expressed  in  its  title,  and  that  no  bill  shall 
contain  but  one  subject,  was  violated.  There  are  no 
incongruous  matters  in  chapter  24  and  the  title  of, 
‘Crimes  and  Criminal  Procedure/  clearly  indicates 
what  it  contains.  What  are  crimes  and  the  pro- 
cedure in  criminal  eases,  are  cognate  subjects,  and 
the  definition  of  crimes  and  the  procedure  against 
persons  accused  of  committing  them,  may  very 
properly  be  embraced  in  one  bill.” 

The  court  properly  held  the  title  to  such  a bill  contained 
but  one  subject.  The  court  has  held  the  title  to  the  acts 
as  to  cities  of  the  various  classes  to  be  constitutional.  That 
they  contain  but  one  general  subject.  The  act  of  March  26th, 
1889,  pages  33,  34  (now  section  6350-6354,  R.  S.  1899), 
authorizes  any  city,  town  or  village  in  the  State  to  contract 
a debt  for  any  purpose  authorized  by  its  charter  or  any  gen- 


28 


eral  law  of  the  State.  This  act  was  held  “live  law”  in  the 
case  of  Evans  vs.  McFarland,  186  Mo.  1.  c.  724. 

Again,  in  1879,  the  legislature  enacted  a measure  author- 
izing the  issuance  of  bonds  for  the  purpose  of  building  a 
court  house  or  jail,  and  by  laws  of  1907,  page  194,  amended 
this  by  authorizing  the  issuance  of  such  bonds  for  the  pur- 
pose of  building  a court  house,  jail  or  a poor  house.  This 
act  has  been  uniformly  upheld  and  its  title  is  sufficient.  It 
relates  to  but  one  subject. 

Judge  Sherwood  in  the  case  of  State  vs.  Bengsch,  170 
Mo.  1.  c.  106,  said: 

“The  title,  of  an  act  under  our  Constitution 
is  to  be  but  a general  indicator  of  the  subject  treated 
of  in  the  body  of  the  act;  that  subject  must,  indeed, 
be  clearly  expressed  in  the  title,  but  that  title  need 
do  no  more;  it  need  not  descend  into  details,  nor 
make  a digest  of  the  statute,  of  which  it  forms  the 
headpiece.” 

The  court  in  the  case  of  State  vs.  Bengsch,  supra,  held 
that  the  title  to  the  State  license  tax,  etc.,  of  the  bill  passed  by 
the  General  Assembly  in  the  session  of  1901,  complied  with 
the  constitutional  provision.  That  act,  which  contained 
twenty-five  sections  with  a great  multiplicity  of  provisions  in 
reference  to  the  appointment  of  a special  license  commis- 
sioner, together  with  his  duties  and  also  as  to  the  provision 
of  stamps  and  the  stamping  of  certain  liquors,  etc.,  contained 
the  following  title: 

“An  act  to  provide  for  a State  license  tax  on 
distilled  liquors,  including  whiskey,  brandy,  rum, 
gin  and  distilled  spirits  of  all  kinds,  wines  and  all 
kinds  of  vinous  liquors ; to  create  the  office  of  special 
license  commissioner,  and  to  provide  for  the  ap- 
pointment thereof  by  the  Governor.” 


29 


This  title  to  the  act  contained  but  the  one  general  subject. 
The  court  so  held  and  commented  on  same  as  set  out  in  the 
paragraphs  above  stated. 

State  vs.  Bengsch,  170  Mo.  1.  c.  105,  106. 

If  the  title  to  the  act  of  1901  last  above  quoted,  meets  the 
constitutional  provision,  how  can  it  be  said,  the  title  to  the 
act  of  1909  violates  it?  In  the  case  of  State  vs.  Bengsch, 
supra,  the  court  upheld  the  title  to  the  act  but  found  the  act 
was  a tax  on  specific  property,  and  correctly  so  because  the 
title  and  the  provisions  of  the  act  so  state  and  the  emergency 
clause  so  recognizes. 

The  title  to  the  act  known  as  the  Beer  Inspection  Law 
was  held  to  meet  the  constitutional  requirement  in  the  ca'se  of 
State  vs.  Bixman,  supra. 

In  passing  on  the  eight -hour  law  affecting  miners,  session 
acts  1901,  page  211,  Judge  Fox  in  the  case  of  State  vs.  Cant- 
well, 179  Mo.  1.  c.  260,  said: 

“It  was  not  necessary  for  the  law-making 
power,  in  the  title  of  the  act,  to  designate  the  pur- 
pose of  it.  The  evils  it  is  intended  to  remedy  may 
be  deduced  from  the  provisions  of  the  act  itself. 
That  the  title  should  contain  but  one  subject,  and 
it  should  be  clearly  expressed,  by  no  means  can  be 
construed  that  the  title  must  designate  the  purpose 
of  the  act.  The  object  to  be  obtained  by  the  provis- 
ions of  the  Constitution  that  there  shall  be  but  one 
subject,  and  it  shall  be  clearly  expressed  was  to 
prevent  surprise  upon  the  lawmakers  by  the  passage 
of  bills,  the  object  of  which  is  not  indicated  by  their 
titles,  and  also  to  prevent  the  combination  of  tAVO 
or  more  distinct  and  unconnected  matteisln  the  same 
bill.” 


30 


There  is  nothing  in  the  title  to  the  act  of  1909,  which 
is  calculated  to  surprise  or  mislead  anyone  who  may  read  it. 
The  body  of  the  act  treats  only  of  the  general  subject  indi- 
cated by  the  title. 

Treating  of  this  topic,  Bishop  tersely  says: 

“The  title  need  indicate  the  subject  only  in  a 
general  way,  without  entering  into  detail;  and  all 
auxiliary  provisions  properly  attaching  to  it,  and 
constituting  with  it  one  whole,  may  he  embraced 
within  the  enactment.’’ 

To  like  effect  is  held  in 

State  vs.  Bockstruck,  136  Mo.  335. 

Statutory  Crimes  (2  Ed.)  Sec.  36a. 

In  the  case  of  State  vs.  Bengsch,  the  court  after  holding 
the  title  to  the  act  of  1901,  to  be  sufficient,  gave  an  illustration 
of  how  the  title  to  that  act  could  even  have  been  abbreviated 
and  still  comply  with  the  constitutional  mandate.  The  abbre- 
viated title  is  as  follows:  (170  Mo.  1.  c.  107.) 

‘ ‘ An  act  relating  to  the  manufacture  and  sale  of 
distilled  and  vinous  liquors.” 

The  court  in  discussing  this  abbreviated  title,  which  did 
not  mention  penalties,  and  which  it  said  would  be  sufficient 
for  the  act  of  1901,  stated : 

“Under  such  a comprehensive  title,  the  mere 
matter  of  detail,  such  as  a license  tax,  etc.,  etc.,  would 
be  entirely  germane  to  that  title.” 

In  view  of  these  general  announcements  from  our  Su- 
preme Court  and  the  application  of  the  constitutional  re- 


31 


quirement  to  particular  titles  to  bills,  the  challenge  as  to  the 
sufficiency  of  the  title  to  the  act  under  consideration,  to  wit: 
the  license  law  of  1909,  is  without  merit.  The  law  presumes 
the  title  to  be  constitutional.  It  is  the  duty  of  the  court 
to  indulge  that  presumption  and  give  it  full  force  and  effect. 
Aside  from  this,  the  State  has  clearly  justified  the  title 
adopted  by  the  legislature  and  the  defendant’s  contention 
must  fall. 

The  defendant  in  its  discussion  of  the  title  also  dis- 
cussed the  question  of  revenue  upon  the  theory  that  the  act 
is  a revenue  law  and  therefore  the  title  had  more  than  one 
subject.  This  contention  is  held  against  it  in  the  license  and 
other  cases  cited  by  the  State  and  in  the  application  of  the 
principles  announced  in  the  first  seven  paragraphs  of  this 
brief. 

The  charge  that  the  law  is  a revenue  measure  will,  how- 
ever, be  further  treated  in  its  proper  place  under  the  assign- 
ments in  defendant’s  motion. 

II. 

THE  ACT  IS  NOT  A REVENUE  MEASURE,  AND  DOES 
NOT  UNDERTAKE  TO  IMPOSE  TAXES  ON  OCCU- 
PATIONS, PERSONS  AND  PROPERTY  WHICH 
ARE  NOT  UNIFORM  ON  THE  SAME  CLASS  OR 
CLASSES  OF  SUBJECTS,  AND  DOES  NOT  VIO- 
LATE SECTION  3 OF  ARTICLE  X OF  THE  CON- 
STITUTION OF  MISSOURI,  AS  CHARGED  IN  THE 
SECOND  SPECIFICATION. 

(a) 

A definition  of  the  word  “license”  is  pertinent  in  dis- 
cussing this  challenge  of  defendant.  The  following  defini- 
tions have  been  given  by  the  courts : 


32 


11 A license  is  essentially  a grant  of  a special 
privilege  to  one  or  more  persons,  not  enjoyed  by 
citizens  generally,  or,  at  least  not  enjoyed  by  a class 
of  citizens  to  which  the  licensee  belonged.  A com- 
mon right  is  not  the  creature  of  a license  law.” 

Words  and  Phrase's,  Yol.  5,  page  4137. 

State  vs.  Frame,  39  Ohio,  413. 

‘ ‘ The  popular  understanding  of  the  word  license 
is  a permission  to  do  something  which  without  the 
license  would  not  be  allowable,  and  such  is  the  legal 
definition.  ’ ’ 

Youngblood  vs.  Sexton,  32  Mich.  406. 

“ License  is  a permission  granted  by  ’some  com- 
petent authority  to  do  an  act  which  without  such 
permission  would  be  illegal.” 

State  vs.  Hipp,  38  Ohio,  199. 

“A  license  in  its  proper  sense  is  a permit  to  do 
business  which  could  not  be  done  without  the 
license.  ’ ’ 

City  of  Sonora  vs.  Curtin,  137  Cal.  583. 

“The  object  of  a license  is  to  confer  a right 
which  does  not  exist  without  a license.  A license  is 
a privilege  granted  by  the  State  usually  on  payment 
of  a valuable  consideration.  To  constitute  a 
privilege  the  grant  must  confer  authority  to  do 
something  which  without  the  grant  would  be  illegal, 
for,  if  what  is  to  be  done  under  the  license  is  open 
to  everyone  without  it,  the  grant  would  be  merely 


33 


idle  and  nugatory,  conferring  no  privilege  what- 
ever.’ ’ 

Cooley  on  Taxation,  596. 

These  definitions  are  Sufficient  to  announce  the  rule  that' 
a license  to  manufacture,  rectify  or  sell  intoxicating  liquors, 
is  the  permission  granted  by  the  State  to  engage  in  a busi- 
ness which,  under  the  laws  of  Missouri,  is  illegal  without  the 
permission  and  further,  is  a business  privilege  not  enjoyed  by 
citizens  generally,  nor  followed  as  a natural  or  fundamental 
right.  That,  without  such  permission,  to  engage  in  such  busi- 
ness, occupation  or  traffic,  would  be  in  violation  of  the  laws 
of  Missouri. 

Or  to  be  more  specific,  as  Black  on  Intoxicating  Liquors, 
Says,  in  section  117  : 

“It  is  apparent  that  three  leading  ideas  are  in- 
volved in  the  definition  of  a license  under  the  liquor 
laws.  First,  it  confers  a special  privilege  upon 
selected  persons,  to  pursue  a calling  not  open  to  all. 
Second,  it  legalizes  acts  which,  if  done  without  its 
protection,  would  be  offenses  against  the  statutes. 
Third,  it  is  a privilege  granted  as  a part  of  a system 
of  police  regulation,  and  herein  is  distinguishable 
from  taxation.  A license  fee  is  exacted  primarily  as 
a means  of  restricting  or  regulating  a trade,  and  it 
continues  to  be  such  although,  incidentally,  it  may 
produce  an  addition  to  the  public  revenue.” 

(b) 

The  act  of  1909,  licensing  manufacturers  and  rectifiers 
of  intoxicating  liquors  and  wholesale  and  retail  dealers  there- 
in, etc.,  in  a general  way  provides,  it  shall  be  unlawful  for 
any  person,  firm  or  corporation  to  manufacture,  rectify,  sell 

p— 3 


34 


or  expose  to  sale,  intoxicating  liquors  of  any  kind  in  any 
quantity  without  a license  from  the  State  so  to  do.  The  act 
prescribes  where  and  how  the  applications  for  such  licenses 
shall  be  made  and  the  statements  to  be  contained  therein. 
If  the  application  is  to  sell,  the  application  must  state  the 
kind  of  lousiness  in  order  that  same  may  be  classified.  The 
application  for  such  licenses  must  in  every  instance  be  ac- 
companied by  a statement  in  writing  subscribed  and  sworn  to, 
setting  forth  certain  matters;  or  under  certain  other  condi- 
tions the  statement  must  contain  certain  estimates.  Upon 
approval  of  such  application  and  statement,  and  payment  of 
the  license  fee  provided,  the  license  issues.  Upon  every 
license  granted  the  State  has  fixed  a certain  price  or  fee  which 
it  demands  for  the  privilege  of  conducting  the  busi- 
ness. It  is  immaterial  whether  you  call  it  by  the  name  of 
a tax,  a license,  a fee,  a license  fee,  a license  tax  or  what  not. 

As  Judge  Gantt  said,  in  the  case  of  State  vs.  Bixman, 
162,  Mo.,  page  24: 

“ It  is  immaterial  by  what  name  it  is  called,  and 
being  such,  it  is  not  a tax  upon  property,  within  the 
meaning  of  our  Constitution,  and  hence  the  objec- 
tions that  it  is  not  levied  according  to  the  value  and 
is  not  uniform  and  exceeds  the  constitutional  rate, 
must  fall  with  the  proposition  to  which  they  are 
corollaries.” 

The  act  for  the  purpose  of  fixing  this  fee  which  must  be 
paid  the  State,  I care  not  by  what  name  you  call  it,  has 
divided  the  business  into  certain  classes  in  section  5 of  the  act 
and  graduated  the  tax  accordingly.  This  is  done  for  the  pur- 
pose of  meeting  the  one  requirement  of  license  laws,  that  is, 
that  it  shall  operate  uniformly  upon  the  same  class.  A read- 
ing of  the  act  either  casually  or  closely  impresses  the  fact  of 
its  uniform  operation  upon  the  same  class.  The  State  has  the 


right  to  separate  them  into  classes,  and  has  the  right  to 
impose  different  charges  or  fees  upon  the  several  classes  so 
created. 

State  vs.  Bixman,  162  Mo.  1.  c.  26,  27. 

The  court  said  in  this  case,  on  page  36 : 

“We  think  it  is  competent  for  the  General  As- 
sembly to  classify  the  different  kinds  of  liquor  deal- 
ers and  impose  differential  taxes  upon  such  classes. 
* * * The  law  as  to  its  taxing  features,  operates 
upon  a business  and  not  upon  property  and  hence  is 
not  required  to  be  uniform  to  all  forms  of  traffic 
or  to  all  classes,  a difference  was  made  between  a 
manufacturer  and  a wholesaler,  and  was  held  proper 
classification.’  * 

To  the  same  effect  is 

Back  on  Intoxicating  Liquors,  Sec.  107. 

I have  quoted  the  main  provisions  of  the  license  act  of 
1909  for  a double  purpose : First,  to  bring  to  the  court ’s  at- 
tention the  fact,  the  bill  has  but  one  subject,  and  that  subject 
is  clearly  expressed  in  the  title,  and  all  matters  contained  in 
the  law  are  germane  to  the  one  subject.  Second,  to  bring  to 
the  court’s  attention  the  fact,  the  law  is  not  a tax  upon 
property,  but  as  the  title  to  the  act  recites,  and  as  the  bill 
itself  provides,  is  a license  upon  a business  or  occupation 
which  cannot  be  conducted  in  Missouri  without  such  license, 
etiher  as  to  manufacturing,  rectifying  or  selling. 

Judge  Gantt  in  delivering  the  opinion  of  the  court  in 
the  case  of  State  vs.  Bixman,  162  Mo.  1.  c.  20,  wherein  the 
constitutionality  of  the  Beer  Inspection  Law  was  attacked, 
in  speaking  of  the  same  objection  to  that  law  as  this  second 
objection  raises  here,  said: 


36 


“The  insistence  of  the  learned  counsel  for  de- 
fendant is  that  it  is  an  act  to  levy  a general  revenue 
or  property  tax,  and  not  a police  regulation.  In 
arriving  at  this  conclusion,  great  stress  is  laid  upon 
the  fact  that  a large  revenue — an  amount  approxi- 
mating a half  million  dollars — is  covered  into  the 
State  Treasury,  together  with  the  fact  that  the 
Statute  requires  all  the  fees  arising  under  it  to 
be  paid  directly  into  the  treasury,  and  that  the 
salaries  of  the  inspectors  and  his  deputies  shall  be 
paid  out  of  a distinct  appropriation  for  that  pur- 
pose. Having  satisfied  themselves  that  it  is  sun  ply 
a revenue  tax,  and  the  law  a method  of  raising 
revenue  only,  counsel  proceed  to  occupy  two  more  ad- 
vanced positions,  to  wit:  that  if  the  legislature  in- 
tended by  these  inspection  fees  to  raise  revenue, 
the  law  cannot  stand,  and  that  the  legislature  has 
not  an  arbitrary  power  to  prohibit  the  sale  of  beer. 
Both  of  these  propositions  we  answer  in  the  negative, 
upon  long  established  principles. 

“As  to  the  first,  this  court  has  answered  in  no 
uncertain  language.  In  State  vs.  Hudson,  73  Mo. 
305,  the  court  said:  ‘It  does  not  follow  because  the 
license  fee  is  large  or  because  it  may  become  a part 
of  the  public  revenue,  that  it  is  therefore  a tax. 
Many  fines,  penalties  and  forfeitures  become  a part 
of  the  public  revenues  of  the  State  that  are  not  de- 
rived from  taxation.  The  disposition  of  the  fund 
derived  from  the  license  fees  does  not  necessarily 
determine  the  character  of  the  fees.’  We  may  add 
that  when  the  subject  is  within  the  police  power  as 
we  think  we  will  be  able  to  show  this  is,  then  the  ex- 
tent to  which  it  shall  be  exercised,  and  the  regula- 
tions to  effect  the  desired  end,  are  matters  within  the 
legislative  discretion.  The  fact,  then,  that  a large 


87 


revenue  results  from  this  price  which  the  legislature 
requires  of  the  brewers  for  the  privilege  of  carry- 
ing on  their  business  in  this  State,  does  not  establish 
that  it  is  a simple  revenue  tax  under  the  guise  of  in- 
spection merely.  ” 

How  aptly  this  declaration  of  the  Supreme  Court  fits 
and  applies  to  the  License  Law  under  consideration.  Can 
it  be  said,  that,  in  the  application  of  a license  law  as  to 
beer  a different  rule  would  exist  than  when  applying  the 
same  to  other  intoxicating  liquors? 

(c) 

We  find,  the  fact  that  revenue,  even  a large  revenue, 
a handsome  revenue  may  follow  is  of  no  concern.  If  this 
were  not  so  then  the  State  would  be  powerless  to  regulate 
the  illegal  traffic  or  business.  The  legislature  would  be  re- 
quired to  nicely  gauge  its  every  act  and  see,  that  in  regu- 
lating these  illegal  businesses  no  revenue  should  follow.  That, 
in  licensing  Jones  or  Smith  to  engage  in  an  illegal  business, 
that  is  an  illegal  business  without  a permit,  it  cannot  demand 
of  them  anything  or  any  sum  which  would  add  to  the  State’s 
revenues.  That,  in  granting  them  a favor  the  State  has  a 
right  to  prescribe  every  condition,  save  and  except  the  one 
condition  as  to  the  amount  of  the  license  fee.  To  hold  and 
affirm  Such  a contention  leads  one  to  an  absurdity. 

Judge  Gantt  in  the  same  case  on  page  21,  said: 

‘ * The  policy  of  the  law  is  one  thing ; the  consti- 
tutional power  of  the  General  Assembly  to  enact  it 
is  an  entirely  different  thing.  The  legislature,  in  the 
act  before  us,  has  declared  that  beer  can  only  be  sold 
or  manufactured  in  this  State  upon  condition  that  it 
shall  be  made  from  certain  cereals  only,  and  shall  be 


38 


inspected,  and  the  inspection  fees  paid  to  the  State 
therefor.  The  defendant  asserts  that  its  action  in 
so  doing  is  unconstitutional.  We  answer  that  under 
the  Constitution  of  the  State  there  is  nothing  to  pro- 
hibit the  legislature  from  suppressing  the  business 
absolutely.  We  stand  upon  firm  ground  in  assert- 
ing this  prerogative  for  the  legislative  department. 
To  deny  it  is  to  depart  from  well-settled  principles. 
It  has  been  the  established  law  of  this  State  that  the 
right  to  sell  spirituous  or  intoxicating  liquors  is  not 
a natural  right , but  is  a calling  which  no  one  has 
the  right  to  pursue  without  first  having  received  the 
privilege  or  license  so  to  do  from  the  lawful  authori- 
ties of  the  State.  In  that  and  the  subsequent  cases 
of  State  vs.  Lemp,  16  Mo.  389,  and  State  vs.  Searcy, 
20  Mo.  489,  it  was  ruled  that  the  State  has  a right 
in  the  exercise  of  its  police  power  to  prohibit  the  sale 
of  intoxicating  liquors  altogether,  or  permit  their 
sale,  under  such  regulations  as  it  deems  proper. 
This  power  was  re-asserted  in  State  vs.  Hudson,  78 
Mo.  302;  and  it  was  further  held  that  the  high 
license  fees  imposed  by  the  act  of  March  24th,  1883, 
were  not  taxes  within  the  meanings  of  sections  1,  3 
and  10  of  article  X of  our  Constitution,  but  the 
price  paid  for  the  privilege  of  doing  a thing,  the 
doing  of  which  the  legislature  has  a right  to  prohibit 
altogether.  ’ ’ 

These  utterances  but  again  impress  us  with  the  principles 
announced  in  the  beginning  of  this  brief  which  we  should 
bear  in  mind,  to  wit:  the  business  sought  to  be  licensed  is 
unlike  all  other  trades  and  employments,  in  that  it  cannot  be 
followed  or  pursued  as  a natural  or  primary  right.  The 
State  can  abolish  the  business  and  the  citizens  lose  no  inalien- 
able rights.  In  discussing  laws  applicable  to  such  a vocation. 


39 


the  rules  laid  down  are  strangers  to  the  rules  applicable  to  a 
business  which  the  citizen  can  follow  as  a primary  or  natural 
right.  It  serves  the  further  purpose  to  impress  the  court 
with  the  fact  that  the  license  fees  under  the  license  act  of 
1883  were  not  taxes  within  the  meaning  of  article  X of  our 
Constitution. 

It  has  been  further  held  in  the  State  and  in  the  Federal 
courts,  that  a license  to  sell  liquors  under  our  laws  is  not  a 
contract  between  the  State  and  the  licensee , nor  property,  in 
the  meaning  of  our  laws  or  Constitutions.  The  courts  have 
expressly  held  to  this  effect. 

Higgins  vs.  Talty,  157  Mo.  280. 

State  vs.  Davis,  108  Mo.  670. 

Boston  Beer  Co.  vs.  Massachusetts,  97  U.  S.  25. 

Justice  Bradley,  of  the  Supreme  Court  of  the  United 
States,  in  delivering  the  opinion  in  the  case  of  Boston  Beer 
Co.  vs.  Massachusetts,  supra,  in  speaking  upon  this  subject, 
said: 

‘ ‘ If-  the  public  safety  or  the  public  morals  re- 
quire the  discontinuance  of  any  manufacture  or 
traffic,  the  hand  of  the  legislature  cannot  be  stayed 
from  providing  for  its  discontinuance,  by  any  in- 
cidental inconvenience  which  individuals  or  cor- 
porations may  suffer.  All  rights  are  held  subject 
to  the  police  power  of  the  State. 

“ Whatever  differences  of  opinion  may  exist  as 
to  the  extent  and  boundaries  of  the  police  power, 
and  however  difficult  it  may  be  to  render  a satis- 
factory definition  of  it,  there  seems  to  be  no  doubt 
that  it  does  extend  to  the  protection  of  the  lives, 
health  and  property  of  the  citizens,  and  to  the 
preservation  of  good  order  and  the  public  morals. 


40 


The  legislature  cannot,  by  any  contract,  divest  itself 
of  the  power  to  provide  for  these  objects.  They 
belong  emphatically  to  that  class  of  objects  which 
demand  the  application  of  the  maxim,  salus  populi 
supremo  lex ; and  they  are  to  be  attained  and  pro- 
vided for  by  such  appropriate  means  as  the  legis- 
lative discretion  may  devise.  That  discretion  can 
be  no  more  bargained  away  than  the  power  itself.* y 

In  the  case  of  State  vs.  Hudson,  78  Mo.  302,  and  re- 
affirmed in  the  case  of  State  vs.  Bixman,  the  court  said: 

“Such  laws  (i.  e.  license  laws),  are  regarded 
as  police  regulations  established  by  the  legislature 
for  the  prevention  of  intemperance,  etc.,  and  are 
not  regarded  as  an  exercise  of  the  taxing  power. 
Pursuits  that  are  pernicious  or  detrimental  to  public 
morals  may  be  prohibited  altogether  or  licensed  for 
a compensation  to  the  public.* * 

The  following  authorities  announce  the  same  principles  r 

Ex  parte  Tuttle,  91  Cal.  589. 

State  vs.  Thompson,  160  Mo.  333. 

Patterson  vs.  Donovan,  20  Nevada,  75. 

Cooley  on  Constitutional  Limitations  (6  Ed.)  p.  591. 
Cooley  on  Constitutional  Limitations  (3  Ed.)  p.  727. 
L’Hote  vs.  New  Orleans,  177  U.  S.  596. 

Crowley  vs.  Christensen,  137  U.  S.  86. 

In  the  case  of  Crowley  vs.  Christensen,  137  U.  S.  86,  the 
court  said : 

“The  manner  and  extent  of  regulation  rests 
in  the  discretion  of  the  governing  authority.  That 


41 


authority  may  vest  in  such  officers  as  it  may  deem 
proper  the  power  of  passing  upon  applications  for 
permission  to  carry  it  on,  and  to  issue  licenses  for 
that  purpose.  It  is  a matter  of  legislative  will  only. 
As  in  many  other  cases,  the  officers  may  not  always 
exercise  the  power  confered  upon  them  with  wisdom 
or  justice  to  the  parties  affected.  But  that  is  a 
matter  which  does  not  affect  the  authority  of  the 
State ; nor  is  it  one  which  can  be  brought  under  the 
cognizance  of  the  courts  of  the  United  States.” 

These  cases  lead  to  the  irresistible  conclusion  that,  in 
dealing  with  a business  denominated  illegal  by  the  law,  and, 
in  imposing  restrictions  and  conditions  upon  it,  the  legisla- 
ture is  not  dealing  with  a question  of  taxation  as  to 
property.  In  speaking  further  upon  this  subject,  Judge 
Gant,  in  the  case  of  State  vs.  Bixman,  162  Mo.  1.  c.  23,  quot- 
ing approvingly  from  the  language  of  Chief  Justice  Dixon  in 
the  case  of  State  vs.  Luddington,  33  Wis.  107,  said: 

“And  herein  as  this  court  conceives  consists  the 
chief  defect  and  fallacy  of  the  position  assumed  and 
argued  with  so  much  ingenuity  and  research  by  the 
learned  counsel  for  the  respondent.  They  forget  as 
it  appears  to  us  that  the  subject  with  which  we  are 
dealing  is  not  one  of  those  pertaining  to  the  pri- 
mary and  fundamental  right  of  the  citizen,  and  as 
to  which  no  unlimited  control  has  been  vested  in  the 
legislature.  They  seem  to  overlook  this  principal 
ground  of  distinction,  and  argue  as  if  the  action 
of  the  legislature  was  an  infringement  of  the 
natural  and  inalienable  rights  of  the  citizen,  de- 
clared and  guaranteed  by  the  Constitution,  instead 
of  an  exercise  of  a discretionary  power  against  which 
no  limit  has  been  set  by  that  instrument.  And,  this, 


42 


we  think,  is  the  very  turning  point  of  the  contro- 
versy, namely,  that  the  legislature  may  grant  or 
withhold  authority  to  sell  at  its  pleasure.  And 
granting  such  authority,  it  is  held  by  the  licensee  at 
the  mere  pleasure  or  grace  of  the  body  granting  it. 
It  is  held  by  him  not  as  a primary  and  absolute 
right , but  as  a favor , which,  like  all  favors,  must  be 
received  upon  such  terms  and  conditions  and  subject 
to  such  burdens  and  inconveniences  as  the  donor 
thinks  proper  to  impose  and  the  donee  elects  to  ac- 
cept.’? 

“Unlike  other  trades  and  employments  which  it 
is  the  right  of  the  citizen  to  pursue,  undisturbed  by 
arbitrary  legislative  interference  and  control,  the 
person  who  engages  in  this  must,  within  the  limita- 
tions above  indicated,  do  so  subject  to  such  dis- 
advantages as  may  be  presented  by  the  law-making 
power  which  authorizes  it.” 

“The  doctrine  that  inspection  fees  legitimately 
cannot  exceed  the  proper  cost  of  inspection  has  no 
application  to  the  facts  of  this  case.  That  rule  ap- 
plies to  those  callings  which  the  State  may  properly 
regulate,  but  has  no  power  absolutely  to  suppress ; 
but  even  in  the  latter  case  it  is  not  restricted  to 
the  mere  cost  of  inspection.  (City  of  St.  Charles 
vs.  Eisner,  155  Mo.  671.)” 

Judge  Gantt  in  concluding  his  opinion  that  the  Beer 
Inspection  Law  was  a police  regulation,  and  a license  on  the 
occupation,  and  not  a tax  upon  property.  (State  vs.  Bixman, 
supra),  on  page  24,  said: 

“Having  thus  indicated  the  fundamental  prin- 
ciples which  must  control  in  our  construction  of  the 
act  of  May  4,  1889,  (Beer  Inspection  Law),  we  are 
prepared  to  answer  the  question  propounded  as  to 


43 


the  nature  of  the  exaction  prescribed  by  the  statute. 
In  our  opinion,  it  is  a police  regulation , imposing 
conditions  upon  the  business  of  manufacturing  and 
selling  beer  and  malt  liquors  in  this  State,  which 
business  the  State  may  absolutely  suppress,  or  per- 
mit upon  such  terms  as  the  legislature  may  pre- 
scribe. We  construe  the  act  in  view  of  all  its  parts 
and  in  connection  with  other  license  laws  of  this 
State,  and  hold  that  the  fee  exacted  is  the  price 
which  the  State  demands  for  the  privilege  of  doing 
the  business  of  brewing  and  selling  beer  and  malt 
* liquors  in  this  State,  and  it  is  immaterial  by  what 
name  it  is  called  and  being  such  is  not  a tax  upon 
property  within  the  meaning  of  our  Constitution, 
and  hence  the  objections  that  it  is  not  levied  accord- 
ing to  value  and  is  not  uniform  must  fall.” 

These  utterances  of  the  Supreme  Court  of  this  State  and 
the  Supreme  Court  of  the  United  States  together  with  those 
of  the  appellate  courts  of  other  states,  leave  no  room  for 
doubt.  It  clearly  and  affirmatively  appears  by  an  examina- 
tion of  the  act  itself  and  these  and  other  decisions,  that  the 
license  law  of  1909,  is  not  susceptible  to  the  charge  of  being 
a revenue  measure,  a tax  upon  property,  or  that  it  imposes 
taxes  on  occupations,  persons  and  property  which  are  not 
uniform  on  the  same  class  and  violative  of  section  3,  article 
X of  the  State  Constitution. 

The  presumption  as  to  the  constitutionality  of  the  law  in 
this  respect  must  be  indulged,  and  the  force  of  defendant’s 
attack  as  to  this  challenge  has  not  been  sufficient  even  to  dis- 
turb the  presumption. 

(d) 

The  defendant  seems  to  rely  upon  the  fact  that  the 
Supreme  Court  of  this  State,  in  the  case  of  State  vs. 


44 


Bengsch,  170  Mo.,  page  81,  held  the  act  of  1901,  providing 
for  a State  tax  on  distilled  liquors,  and  creating  the  office  of 
special  license  commissioner  was  unconstitutional.  The  court 
did  so  by  reason  of  the  fact  the  act  was  a revenue  measure, 
a tax  upon  property , and  therefore  not  uniform  in  its  opera- 
tion upon  the  same  class  of  subjects  in  violation  of  section  3, 
article  X of  the  State  Constitution. 

The  defendant  and  its  counsel  are  hypercritical  in  pre- 
senting the  motion  to  quash  and  the  brief  thereon,  but  fail 
to  distinguish  any  difference  between  the  decision  in  the 
Bengsch  case  and  the  principles  of  law  when  applied  to  the 
act  now  under  review  by  this  court.  The  act  of  1901  was  an 
act  providing  a tax  on  property.  The  title  to  the  act  pro- 
vided that  it  was  a <(tax  on  distilled  liquors If  the  title 
to  the  act  declares  it  to  be  a tax  on  distilled  liquors,  and  dis- 
tilled liquors  being  property,  there  is  no  other  conclusion  to  be 
reached. 

Under  the  Constitution  of  Missouri,  the  legislature  can 
only  acquire  its  information  as  to  the  general  subject  and 
contents  of  a bill  by  and  through  its  title.  If  that  title  dis- 
closes upon  its  face,  as  in  the  act  of  1901,  that  it  is  a tax  on 
property,  and  so  states  in  plain  language,  that  is  the  highest 
knowledge  and  information  which  can  be  imparted  to  the 
legislature.  It  is  the  best  evidence,  and  in  legislating  upon 
the  subject,  it  must  be  presumed  the  legislature  knew  the  act 
it  was  adopting  was  a revenue  measure,  a tax  upon  property, 
instead  of  a license  act  under  the  police  power,  and  was  So 
intended. 

As  a further  evidence  of  this  knowledge  upon  the  part 
of  the  legislature  passing  the  act  of  1901,  it  adopted  an 
emergency  clause  which  provided,  that,  by  reason  of  a de- 
ficiency existing  in  the  revenues  of  the  State,  the  law  should 
become  operative  at  once.  As  was  said  by  Judge  Sherwood  in 
that  case  on  page  107,  this  became  a direct  vote  and  expres- 
sion of  three-fourths  of  the  members  that  they,  in  their 


45 


legislative  capacity , considered  and  understood  the  act  to  be 
a revenue  measure,  passed  for  that  purpose  and  placed  in 
operation  immediately  and  without  waiting  for  the  expiration 
of  the  constitutional  limit  of  ninety  days. 

If  the  title  to  the  bill  affirmatively  states  it  is  a “tax  on 
property”  and  the  emergency  clause  to  such  bill  states,  it  is 
to  supply  a deficiency  in  the  revenues  of  the  State,  the  courts 
must  accept  the  declaration  of  the  legislature  as  to  its  intent 
in  the  passage  of  the  law. 

However,  there  is  no  such  fact  or  contention  relative  to 
the  act  of  1909.  The  title  to  the  bill  instead  of  reciting  that 
it  is  a tax  on  property,  contains  the  apt,  appropriate  and 
correct  statement  that  it  is,  £ ‘ an  act  to  license  manufacturers, 
etc.”  Here  we  have  the  direct  statement  in  the  title  which 
imparts  to  the  legislature  the  information  as  to  the  subject 
and  contents  of  the  bill;  that  the  bill  is  a license  measure , 
regulating  the  traffic  of  liquors  within  the  police  power  of  the 
State. 

All  these  objections  presented  by  the  defendant  were 
raised  and  urged  against  the  dramshop  laws  of  this  State,  but 
the  Supreme  Court  decided  against  the  contentions. 

Troll  vs.  Hudson,  78  Mo.  302. 

State  vs.  Bixman,  162  Mo.  1. 

(e) 

The  defendant  objects  and  says,  the  act  of  1909  exempts 
from  the  operation  of  the  law  wines  or  spirits  made  from 
grapes  or  fruits  grown  in  this  State  and  exempts  from  its 
operation  liquors  sold  by  dramshop  keepers.  The  dramshop 
keeper  is  licensed  under  another  law  and  pays  his  license  to 
sell  drinks  at  retail.  He  belongs  to  a special  class  already 
provided  for,  and  it  is  proper  to  exempt  him  here.  That 
does  not  affect  the  uniform  operation  of  the  law  upon  each 
of  the  susceptible  classes  provided  for  in  the  act.  The  act 


46 


applies  to  manufacturers,  rectifiers,  wholesalers  and  merchants 
and  graduates  the  charge  or  license  fee  then  for  the  various 
classes  arising  under  the  law. 

On  page  23,  of  defendant’s  brief,  it  says:  “The  act  of 
June  1st,  1909,  is  designed  to  apply  to  wholesalers,  retailers, 
manufacturers  and  rectifiers  of  malt,  fermented  and  spiritu- 
ous liquors.  If  such  was  its  application  in  fact  there  probably 
could  be  no  exception  taken  to  it  as  violative  of  the  ‘Due 
Process’  clauses  of  the  State  and  Federal  Constitutions.  But 
under  the  specific  terms  of  the  act  the  manufacturers  and 
dealers  in  intoxicating  liquors  are  divided  and  classified  and 
certain  classes  are  exempted  entirely  from  payment  of  the 
tax  imposed  while  others  are  made  subject  to  the  payment  of 
a less  amount  than  others.” 

This  is  exactly  what  the  State  has  a right  to  do.  It  has 
a right  to  divide  and  classify.  It  has  a right  to  license  certain 
classes  and  exempt  certain  other  classes  of  the  liquor  dealers 
from  its  operation.  It  has  a right  to  graduate  the  charge 
as  to  each  special  class.  It  has  a right  to  make  it  a specific 
sum  on  one  class  and  to  graduate  the  charges  or  license  fee 
as  to  the  other  classes  in  proportion  to  their  output  or  sales. 

That  the  State  has  all  these  rights  under  its  police 
power  in  regulating  the  liquor  traffic  is  too  well  settled  to 
admit  of  controversy.  The  trouble  with  the  defendant  is, 
that  its  argument  at  all  times  is  based  on  the  one  theory  of  the 
taxation  of  property. 

In  support  of  the  State’s  position,  Judge  Gantt  in  the 
case  of  State  vs.  Bixman,  162  Mo.  1.  c.  30,  said : 

‘ ‘ But  we  hold  that  it  is  competent  for  the  legis- 
lature to  fix  the  amount  in  proportion  to  the  busi- 
ness done  or  the  output  sold  as  in  this  case.  That 
is  a matter  for  the  law-making  power  to  determine, 
and  as  we  have  already  said,  it  does  not  follow  that 
a license  must  issue  for  a fixed  period.  ’ ’ 


47 


Again,  on  page  35,  he  Says: 

“Holding  as  we  do,  that  this  is  not  a property 
tax,  but  a proper  police  regulation  of  an  otherwise 
inhibited  article  * * * it  is  not  open  to  the  objection 
that  it  exceeds  the  rate  of  property  taxation.  But 
counsel  urge  another  view  and  it  is  this:  Treated 
as  a charge  or  fee,  they  say  this  exaction  is  not 
uniform,  because  it  is  imposed  upon  the  business  of 
those  who  manufacture  and  sell  beer  and  malt 
liquors  only,  and  not  upon  the  business  of  all  who 
deal  in  intoxicating  liquors.  In  other  words,  the 
objection  is  that  in  segregating  the  manufacture  and 
Sale  of  beer  and  malt  liquors  the  legislature  has  made 
an  arbitrary  classification  and  thus  unjustly  imposes 
a burden  upon  this  particular  kind  of  business  when 
if  imposed  at  all  it  should  be  upon  the  business  of 
all  who  are  engaged  in  the  manufacture  and  sale 
of  intoxicating  liquors  of  every  kind ; that  it  is  class 
legislation.  To  this  we  do  not  assent.  The  State 
is  under  no  obligation  to  permit  the  manufacture  of 
any  kind  of  intoxicating  liquors.  It  may  impose 
one  kind  of  restrictions  upon  one  kind  of  intoxicants 
and  another  kind  upon  another  sort.” 

Again  on  page  37,  he  says: 

1 1 The  law  as  to  its  taxing  features  operates  upon 
a business  and  not  upon  property  within  the  mean- 
ing of  the  section  referred  to,  and  hence  is  not  re- 
quired to  be  uniform  to  all  forms  of  traffic  or  to  all 
classes.  A difference  was  made  between  a manu- 
facturer and  a wholesaler,  and  it  was  held  proper 
classification.” 


On  page  24,  he  sayS: 


48 


“It  is  immaterial  by  what  name  it  is  called,  it 
is  not  a tax  upon  property  within  the  meaning  of 
our  Constitution  and  hence  the  objections  that  it  is 
not  levied  according  to  value,  and  is  not  uniform 
and  exceeds  the  Constitutional  rate,  must  fall.,, 

In  the  case  of  Clark  vs.  Titusville,  184  U.  S.  1.  c.  330, 
the  court  said: 

‘ ‘ Classification  according  to  the  amount  of  busi- 
ness done  has  been  frequently  recognized  by  the 
Federal  courts.” 

In  the  case  of  Clark  vs.  Titusville,  supra,  the  court  held 
that  an  ordinance  imposing  a license  tax  upon  the  merchants 
of  the  city  by  which  they  are  divided  into  classes  according 
to  the  amount  of  their  sales,  each  class  including  all  whose 
sales  range  between  a certain  minimum  and  maximum  amount 
does  not  violate  the  equality  clause  of  the  United  States  Con- 
stitution, although  the  result  is  to  make  persons  in  different 
classes  pay  liff event  rates,  and  to  make  those  in  the  same  class 
pay  at  a different  ration  if  the  amounts  of  their  sales  differ. 

If  these  rules  are  applicable  to  any  class  of  business, 
they  are  certainly  applicable  to  that  of  the  traffic  of  intoxicat- 
ing liquors.  The  Supreme  Court  of  this  State  and  the 
United  States  have  so  held  directly.  Affirming  these  principles 
is  the  doctrine  laid  down  in  the  text  works. 

Black  on  Intoxicating  Liquors,  sections  109,  232. 

The  contention  of  the  defendant  is  without  avail.  The 
operation  of  the  law  is  uniform  upon  each  class.  It  is  not 
necessary  to  legislate  as  to  dramshop  keepers,  druggists,  etc. 
The  legislature  can  legislate  as  to  any  part  or  all  of  the 
various  classes  engaged  in  the  traffic  of  intoxicating  liquors. 
It  can  impose  a license  on  certain  named  classes  and  leave 


49 


all  other  classes  untouched,  and  those  named  cannot  be  heard 
to  complain.  The  fact  that,  in  the  license  act  of  1909,  no 
license  is  required  of  certain  other  classes  of  sellers  of  liquors 
is  of  no  importance,  and  in  no  wise  affects  the  validity  of  the 
law.  Dramshop  keepers  and  druggists  are  regulated  by 
other  statutes  passed  by  the  legislature  by  virtue  of  its  police 
power,  and  those  requirements  operate  on  each  as  a class  and 
those  laws  do  not  affect  manufacturers,  merchants,  whole- 
salers and  rectifiers.  The  decisions  and  authorities  cited  in 
this  brief  place  this  beyond  cavil  or  doubt. 

Uniformity  on  all  members  of  a class  suffices,  and  this 
is  true  even  though  the  business  or  the  class  is  one  not  en- 
gaged in  the  selling  of  liquor  and  under  bane  of  the  law,  but 
engaged  in  the  ordinary  business  affairs,  private  or  public. 

State  vs.  Cantwell,  179  Mo.  245. 

State  vs.  Swagerty,  203  Mo.  517. 

Hume  vs.  Railway,  82  Mo.  1.  c.  231. 

Missouri  Pacific  Ry.  vs.  Hume,  115  U.  S.  1.  c.  522, 
523. 

The  question  as  to  exempting  wines  and  liquors  made 
from  grapes  grown  in  this  State  has  been  held  against  defend- 
ant’s contention  in  the  following  cases: 

State  vs.  Stucker,  58  Iowa  496. 

McGuire  vs.  State,  42  Ohio  St.  530. 

State  vs.  Bixman,  160  Mo.  1. 

Refining  Co.  vs.  Louisiana,  179  U.  S.  89. 

Williams  vs.  Fears,  179  U.  S.  270. 

Cox  vs.  Thompson,  202  U.  S.  446. 

The  case  of  Cox  vs.  Thompson,  supra,  involved  the  consti- 


p— 4 


50 


tutionality  of  an  act  in  the  Revised  Statutes  of  Texas.  It 
was  contended  the  act  was  unconstitutional  because  in  pro- 
viding taxes  on  the  sellers  of  intoxicating  liquors,  it  contained 
a provision  exempting  wines  produced  from  grapes  grown  in 
the  State,  while  the  same  is  in  the  hands  of  the  producers 
or  manufacturers  thereof.  The  Supreme  Court  of  the  United 
States  held,  this  exemption  did  not  affect  the  validity  or 
constitutionality  of  the  law,  and  did  not  violate  the  constitu- 
tional provisions  in  reference  to  equal  protection  of  the  law. 

A manufacturer  engaged  in  the  business  of  refining  sugar 
is  not  denied  the  equal  protection  of  the  laws  because  of  the 
discrimination  made  by  the  Constitution  of  Louisiana  im- 
posing a license  tax  upon  manufacturers  engaged  in  such 
business,  but  exempting  from  the  tax  those  who  refined  the 
products  of  their  own  plantations. 

Sugar  Refining  Co.  vs.  Louisiana,  179  U.  S.  89. 

To  the  same  effect  are  the  casese  of 

Kidd  vs.  Alabama,  188  U.  S.  732. 

Cox  Vs.  Thompson,  202  U.  S.  446. 

Cargill  Co.  vs.  Minnesota,  180  U.  S.  452. 

Armour  Packing  Co.  vs.  Lacey,  200  U.  S.  226. 

‘Williams  vs.  Fears,  179  U.  S.  270. 

Atkin  vs.  Kansas,  191  U.  S.  207. 

(f) 

But  for  the  sake  of  argument,  say  the  provision  of  the 
law  of  1909,  exempting  wines  or  spirits  made  from  grapes 
or  fruits  grown  in  this  State,  violates  the  constitutional  pro- 
vision under  consideration,  still  that  would  be  of  no  conse- 
quence. The  challenge  in  that  particular  does  not  and  would 
not  affect  the  law  in  a vital  way. 

That  exemption  can  be  stricken  from  the  act  and  the 


51 


bill  survive,  and  be  as  valid  and  good  for  the  purposes  for 
which  enacted  as  though  it  remained  in  the  bill. 

On  this  subject,  in  the  ease  of  Tieman  vs.  County 
Treasurer,  102  U.  S.  123,  the  court  in  passing  upon  a similar 
statute  in  the  State  of  Texas,  which  provided  the  act  should 
not  be  so  construed  as  to  include  any  wines  or  beer  manu- 
factured in  that  State  or  when  sold  by  druggists  for  medical 
purposes,  said: 

“The  statute  of  Texas  is  inoperative,  so  far  as 
it  makes  a discrimination  against  wines  and  beer 
imported  from  other  states,  when  sold  separately 
from  other  liquors.  A tax  cannot  be  exacted  for 
the  sale  of  beer  and  wines  when  of  foreign  manu- 
facture if  not  exacted  from  their  sale  when  of  home 
manufacture.  * # # # In  the  present  case  the 

petitioners  described  themselves  as  engaged  in  the 
occupation  of  selling  spirituous,  vinous,  malt  and 
other  intoxicating  liquors.  There  is  no  reason  why 
they  should  be  exempted  from  the  tax  when  selling 
brandies  and  whiskies  and  other  alcoholic  drinks  in 
the  quantities  mentioned,  because  they  could  not  be 
thus  taxed  if  their  occupation  was  limited  to  the  sale 
of  wine's  and  beer.  We  see,  therefore,  no  error  in 
the  ruling  of  the  Supreme  Court  of  Texas  and  its 
judgment  is  accordingly  affirmed.  ” 

The  information  filed  against  the  defendant  by  the 
prosecuting  attorney  of  the  city  of  St.  Louis,  does  not  charge 
it  with  the  manufacture  and  sale  of  wines  or  spirits  made 
from  grapes  or  fruits  grown  in  this  State.  On  the  other  hand 
the  information  charges  it  with  manufacturing,  rectifying  and 
Selling  other  intoxicating  liquors  not  being  wines  or  spirits 
made  from  grapes  or  fruits  grown  in  this  State,  etc.,  etc. 
The  information  removes  the  defendant  from  the  exemption 


52 


named  in  the  act.  It  manufactures  and  sells  liquors  other 
than  those  made  from  grapes  and  fruits.  The  act  does  not 
discriminate  as  to  any  class.  If  discrimination,  it  is  as  to 
liquors  from  other  States  made  from  grapes  and  fruits.  But 
that  does  not  affect  the  equal  operation  on  the  same  classes. 
Each  is  affected  alike.  Each  can  go  to  other  States  and  buy 
other  liquors,  etc.,  and  uniformity  on  the  Same  classes  still 
adheres. 

State  vs.  Bixman,  162.  Mo.  1.  c.  40. 

Black  on  Intoxicating  Liquors,  Sec.  109. 

1 

Justice  Field,  in  delivering  the  opinion  in  the  case  of 
Tiernan  vs.  County  Treasurer,  102  U.  S.  123,  said: 

“If  a party  be  engaged  exclusively  in  the  sale 
of  these  liquors,  or  in  any  business  for  which  a tax 
is  levied  because  it  embraces  a sale  of  them,  he  may, 
justly  object  to  the  discriminating  character  of  the 
act,  and  on  that  account  challenge  its  validity  under 
the  decision  in  question;  but  if  engaged  in  the 
sale  of  other  liquors  than  beer  or  wines , he  cannot 
complain  of  the  State  tax  on  that  ground.  The 
Statute  makes  no  discrimination  in  favor  of  other 
liquors  of  home  manufacture.  Whilst  it  groups  the 
sale  of  several  kinds  of  liquors  as  one  occupation,  it 
evidently  intends  that  the  occupation  which  consists 
in  the  sale  of  any  one  of  the  several  liquors  named  in 
the  quantities  mentioned  shall  be  subject  to  tax  as 
though  it  read : ‘ for  selling  spirituous,  or  vinous,  or 
malt,  or  other  intoxicating  liquors.’  It  does  not  re- 
quire, to  justify  the  tax,  that  a party  shall  be 
engaged  in  the  sale  of  all  the  liquors  mentioned  as 
well  as  other  liquors.” 

Under  this  holding  of  the  Supreme  Court  of  the  United 


53 


States,  the  defendant  cannot  on  account  of  this  exception, 
challenge  the  validity  of  the  statute,  because  it  is  engaged  in 
the  manufacture  and  sale  of  liquors,  other  than  those  made 
from  grapes  and  fruit.  But,  even  if  this  were  not  true,  the 
act  could  be  held  inoperative  as  to  that  exemption  and  survive 
and  be  operative  as  to  the  remaining  portions  just  as  the 
Texas  statute.  If  this  exemption  provided  in  the  act  were 
unconstitutional,  it  would  only  be  unconstitutional  in  that 
particular  respect,  and  consequently  would  not  affect  the  re- 
maining constitutional  provisions. 

The  law  is  well  settled  in  this  State  that  part  of  a statute 
may  be  declared  unconstitutional  and  the  residue  declared 
constitutional  and  valid.  The  test  is  not  whether  the  void 
and  valid  parts  are  found  in  the  same  section,  but  rather 
whether  they  are  essentially  and  inseparably  connected.  If 
the  unconstitutional  part  can  be  separated  from  the  act  and 
leave  the  act  capable  of  being  executed  in  conformity  with 
the  apparent  legislative  intent,  regardless  of  that  which  is 
rejected,  the  valid  portions  must  stand  and  the  other  parts 
of  the  act  regarded  as  stricken  out. 

Birch  vs.  Plattsburg,  180  Mo.  1.  c.  418. 

State  vs.  Bockstruck,  136  Mo.  1.  c.  353. 

State  ex  rel.  vs.  Field,  119  Mo.  1.  c.  612. 

Railroad  vs.  Evans,  85  Mo.  307. 

State  ex  rel.  vs.  Pond,  93  Mo.  1.  c.  635. 

Allen  vs.  Louisiana,  103  U.  S.  80. 

Tiernan  vs.  County  Treasurer,  102  U.  S.  123. 

In  the  case  of  Birch  vs.  Plattsburg,  supra  1.  c.  418,  Judge 
Brace  in  rendering  the  opinion  of  the  Court  said: 

“The  law  is,  that  part  of  a statute  may  be  un- 
constitutional and  void,  and  the  residue  constitu- 
tional and  valid.  The  test  is  not  whether  the  void 


54 


and  valid  parts  are  contained  in  the  same  section, 
for  the  distribution  into  sections  is  purely  artificial ; 
but  rather,  whether  they  are  essentially  and  in- 
separably connected ; as  it  would  be  inconsistent  with 
all  just  principles  of  constitutional  law  to  adjudge 
enactments  not  obnoxious  to  any  just  constitutional 
exceptions,  void,  because  they  are  associated  in  the 
same  act,  but  not  connected  with  or  dependent  on 
others  which  are  unconstitutional.  ’ ’ * * ■ * 

“If  when  the  constitutional  part  is  stricken  out 
that  which  remains  is  complete  in  itself  and  capable 
of  being  executed  in  accordance  with  the  apparent 
legislative  intent,  it  must  be  sustained.” 

The  clause  or  exception  thrown  into  the  act  of  1909,  has 
no  connection  with  the  objects  and  purposes  of  the  act,  and 
can  be  removed,  and  the  act  be  capable  of  being  executed  in 
accordance  with  the  apparent  legislative  intent.  It  does  not 
disturb  the  harmony  of  the  law  or  its  machinery  or  in- 
capacitate it  in  any  way. 

Judge  Sherwood,  in  speaking  for  the  court,  in  the  State 
vs.  Bockstruck,  136  Mo.  1.  c.  353,  said: 

“Now  nothing  is  better  settled  than  that  a part 
of  a law  may  be  declared  constitutionally  invalid, 
and  yet  another  portion  properly  separable  there 
from,  and  therefore  unexceptionable  in  every  par- 
ticular. This  may  be  so  even  though  the  sound 
and  unsound  are  in  one  section  together.  This  is 
always  the  rule  unless  the  parts  sound  and  unsound 
are  so  mutually  related,  so  blended  together,  as  to 
constitute  an  entirety,  making  it  evident  that  unless 
the  act  be  carried  into  effect  as  a whole,  it  could  not 
have  received  the  legislative  sanction.” 


55 


Measured  by  this  rule,  the  contention  as  to  the  exemption 
could  be  held  good  and  in  no  wise  affect  the  validity  of  the 
law  and  its  proper  inforcement. 

Judge  Gantt,  in  the  case  of  State  ex  rel.  vs.  Field,  119 
Mo.  1.  c.  612,  quoted  the  following  language  approvingly  from 
the  85th  Missouri,  307,  to  wit: 

“ Sometimes  a statute  is  unconstituional  in  part 
and  constitutional  as  to  the  residue,  and  if  the  uncon- 
stitutional part  is  not  inseparably  connected  in  sub- 
stance with  that  which  is  valid  and  complete  in 
itself,  and  capable  of  being  executed  in  conformity 
with  the  apparent  legislative  intent,  regardless  of 
that  which  is  rejected,  the  unconstitutional  part  may 
be  regarded  as  stricken  out.” 

i 

It  would  not  be  contended  for  a moment  that  the  excep- 
tion is  inseparably  connected  in  substance  with  , the  remain- 
ing portions  of  the  act.  The  mere  fact  that  a clause  in  an 
act  appears  as  an  exception  is  the  strongest  and  highest  evi- 
dence that  it  is  not  inseparably  connected  with  the  sub- 
stance of  the  act,  because  the  law  has  been  rendered  com- 
plete up  to  the  point  of  the  exception  and  the  exception  is 
made  simply  for  the  purpose  of  declaring,  that  the  law 
already  set  out  and  capable  of  complete  enforcement  shall 
not,  as  written,  apply  to  the  exception. 

Justice  Norton,  in  the  case  of  State  ex  rel  vs.  Pond,  93 
Mo.  1.  c.  635,  said: 

“It  is  not  pretended  that  unconstitutional  pro- 
visions in  a law  make  it  totally  void.  On  the  con- 
trary, it  is  well  settled  that  they  do  not,  and  that 
a law  may  well  stand  so  far  as  it  is  constitutional, 
although  it  has  in  it  certain  provisions  which  are  not 
valid.  ’ ’ 


56 


We  could  multiply  these  decisions  upon  this  point  but 
it  is  unnecessary  so  to  do.  For  the  purposes  of  sustaining  the 
present  law  it  is  immaterial  what  view  the  court  entertains  as 
to  the  exemptions.  It  may  hold  them  valid  or  invalid,  and 
its  action  will  in  no  wise  affect  the  validity  of  the  act  and  its 
proper  enforcement. 

(g) 

As  defendant  has  diagnosed  the  act  of  1909  as  a revenue 
measure,  a tax  upon  the  property,  its  argument  and  brief  are 
not  pertinent.  The  act  is  a license  law  enacted  by  virtue  of 
the  police  power  of  Missouri  intended  to  regulate  a certain 
traffic  which  is  illegal  without  a special  permit  from  the 
State. 

The  brief  of  defendant’s  counsel  is  very  good  were  the 
act  under  consideration  an  act  authorizing  the  levying  of 
taxes  upon  property.  Counsel  finds  fault  with  the  gradua- 
tion and  classification  of  the  different  occupations  in  section 
5,  and  contends  that  action  makes  it  a revenue  measure.  The 
provisions  of  section  5 were  proper  because  it  became  neces- 
sary to  graduate  the  license  tax  and  divide  the  occupation 
into  the  several  classes  in  order  that  the  law  might  be  uni- 
form in  its  operation  upon  the  same  class. 

The  Supreme  Court  of  the  United  States  in  the  case  of 
Clark  vs.  Titusville,  in  Yol.  184,  U.  S.  p.  329,  held: 

“An  ordinance  imposing  a license  tax  upon  the 
merchants  of  the  city,  by  which  they  are  divided 
into  classes  according  to  the  amount  of  their  sales, 
each  class  including  all  whose  sales  range  between  a 
certain  minimum  and  maximum  amount,  does  not 
violate  the  equality  clause  of  the  United  States 
Constitution,  14th  amendment,  although  the  result 
is  to  make  persons  in  different  classes  pay  different 


57 


rates , and  to  make  those  in  the  same  class  pay  at  a 
different  ratio  if  the  amounts  of  their  sale's  differ.’ 7 

If  this  be  true  in  reference  to  the  business  of  merchants, 
a business  not  under  legal  condemnation,  how  can  it  be  said, 
the  act  of  1909,  a license  law  leveled  against  an  illegal  busi- 
ness cannot  divide  the  manufacturers  and  wholesaler's  into 
classes  and  graduate  the  license  tax  accordingly?  For  in- 
stance, in  the  merchants’  class  a fee  of  $100.00  on  sales  not 
exceeding  5,000  gallons  in  one  year.  In  the  next  class  of 
merchants  a fee  of  $150.00  on  Sales  more  than  5,000  and  less 
than  10,000  gallons  in  one  year,  and  $1.00  for  each  1,000 
gallons  more  than  10,000  gallons  or  fraction  of  1,000  gallons 
more  than  500,  the  maximum,  not  to  exceed  in  the  aggregate 
the  sum  of  $1,000.00.  The  law  operates  equally  on  each 
class  according  to  their  sales.  The  same  uniformity  is  found 
when  the  law  is  applied  to  the  wholesale  classes  provided  for. 
The  same  uniformity  exists  when  applied  to  the  manufactur- 
ing classes  provided  for,  and  to  every  class  susceptible  under 
the  law  or  the  graduations  under  any  such  classes.  There  is 
absolute  harmony  and  equality  throughout  every  provision. 
It  is  only  required  to  meet  the  test  as  a license  law , but  does, 
as  a matter  of  fact,  comply  with  the  rules  laid  down  and  an- 
nounced as  applicable  to  other  occupations,  which  are  not 
denominated  illegal  under  our  laws. 

State  vs.  Bixman,  162  Mo.  1.  c.  36,  37. 

Black  on  Intoxicating  Liquors,  109,  232. 

The  defendant’s  counsel  does  not  attempt  to  cite  any 
authorities  applicable  under  a license  law  to  the  manufacture 
and  sale  of  intoxicating  liquors.  They  cite  nothing  but  cases 
applicable  only  to  the  taxation  of  property. 

They  cite  the  case  of  State  vs.  Bengsch,  170  Mo.  81,  as 
an  authority  bearing  out  their  contention,  but  we  have  fully 


58 


discussed  that  case  heretofore.  The  court  held  the  law  to  he 
a tax  on  property,  thereby  removing  it  from  the  license  law 
class  and  consequently  that  decision  is  not  an  authority  upon 
any  proposition  here  involved.  It  would  serve  no  useful 
purpose  for  the  State  to  discuss  any  of  the  cases  further 
which  the  defendant  presents  for  the  reason  heretofore  stated, 
its  counsel  has  proceeded  upon  the  sole  theory  that  the 
measure  is  a revenue  measure,  and  a tax  upon  property. 
Having  failed  entirely  in  maintaining  itself  as  to  that  posi- 
tion, its  challenges  in  every  particular  must  fall. 

The  holding  in  the  case  of  Clark  vs.  Titusville,  U.  S.  184, 
page  329,  above  mentioned,  which  holding  is  fully  set  out,  is 
the  holding  of  many  of  the  States.  It  has  been  held,  you  could 
graduate  the  tax  upon  an  occupation  or  vocation  according 
to  the  extent  of  the  business,  in  North  Carolina. 

State  vs.  Powell,  100  N.  C.  525. 

It  has  been  held  livery  stables  could  be  charged  license 
fees  in  proportion  to  the  number  of  carriages  kept  for  hire. 

Howland  vs.  Chicago,  108  111.  500. 

It  has  been  held  that  a license  tax  may  be  imposed  upon  a 
hotel  and  the  fee  graduated  according  to  the  number  of 
rooms  devoted  to  the  accommodation  of  the  public. 

St.  Louis  vs.  Bircher,  7 Mo.  App.  169. 

St.  Louis  vs.  Bircher,  76  Mo.  431. 

The  following  authorities  selected  from  other  jurisdic- 
tions sustain  the  principle  announced  in  the  cases  above 
cited. 

Ex  parte  Mount,  66  Cal.  448. 

Allentown  vs.  Gross,  132  Pa.  319. 


59 


Knisely  vs.  Cottrell,  196  Pa.  614. 

Sacramento  vs.  Crocker,  16  Cal.  119. 

'Williamsport  vs.  Wenner,  172  Pa.  173. 

Titusville  vs.  Clark,  195  Pa.  634. 

County  vs.  Greenburg,  120  Cal.  300. 

Burlington  vs.  Insurance  Co.,  31  Iowa  102. 

00 

The  decisions  in  Missouri  in  addition  to  authorities 
already  cited  in  this  and  other  states  authorizing  the  gradua- 
tion in  occupations,  no  matter  whether  the  occupation  be 
legal  or  illegal,  are  as  follows: 

State  vs.  Bixman,  162  Mo.  1.  c.  36,  37. 

Kansas  City  vs.  Richardson,  90  Mo.  App.  450. 

St.  Louis  vs.  Bowler,  94  Mo.  630. 

Masonic  Aid  Association  vs.  Waddill,  138  Mo.  628. 

St.  Louis  vs.  Green,  7 Mo.  App.  468. 

St.  Louis  vs.  Green,  70  Mo.  562. 

Kansas  City  vs.  Grush,  151  Mo.  562. 

St.  Louis  vs.  Sternberg,  69  Mo.  289. 

St.  Charles  vs.  Eisner,  155  Mo.  671. 

. City  of  Aurora  vs.  McGannon,  138  Mo.  38. 

Troy  vs.  Harris,  102  Mo.  App.  51. 

Troll  vs.  Hudson,  78  Mo.  302. 

The  above  authorities  sustain  the  position  of  the  classifica- 
tion on  graduation  no  matter  whether  the  business  being  con- 
ducted is  that  of  a merchant,  etc.,  or  one  engaged  in  the  traffic 
of  intoxicating  liquors. 

The  Kansas  City  Court  of  Appeals  in  the  case  of  Kansas 
City  vs.  Richardson,  supra,  on  page  455,  said : 


60 


“The  constitutional  provision  just  referred  to 
(Sec.  3,  Art.  X,  Missouri  Constitution),  does  not  in- 
clude every  species  of  taxation.  It  is  restricted  in 
its  application  to  property  alone.  It  is  without  ap- 
plication to  taxes  on  privileges  or  occupations,  or  on 
the  exercise  of  a civil  right.  ” * * * 

“The  defendant  insists  that  the  license  tax  re- 
quired by  the  present  ordinance  is  a tax  upon 
personal  property.  To  this  insistence  we  cannot  yield 
or  assent,  for  the  reason  that  we  think  the  law  is 
now  well  settled,  at  least  as  far  as  we  are  concerned, 
that  it  is  a license  tax  on  a privilege  connected  with 
property  and  not  upon  the  property,  and  though 
imposed  for  revenue,  it  is  a tax  in  the  nature  of  a 
license,  because  it  is  a permission  to  do  that  which, 
after  the  passage  of  the  ordinance,  it  became  unlaw- 
ful to  do  without  having  first  obtained  a permis- 
sion. ’ ’ 

The  court  in  the  above  case  was  passing  upon  the 
ordinance  dividing  vehicles  and  teams  into  different  classes, 
and  imposing  an  occupation  tax  on  each  separate  class.  If 
this  be  the  law  in  reference  to  so  legitimate  an  occupation  in 
the  first  instance,  how  can  it  be  said,  that  a license  law  classi- 
fying and  graduating  an  illegal  business  would  violate  the 
Constitution  ? 

In  the  case  of  city  of  St.  Louis  vs.  Bowler,  94  Mo.  1.  c. 
634,  Judge  Sherwood  in  discussing  ordinance  12473,  to 
license,  tax  and  regulate  agents,  real  estate  agents  and  brokers, 
financial  agents,  mercantile  agents,  and  all  other  business, 
trades,  avocations,  etc.,  and  wherein  a Sewing  machine  agent 
was  convicted  for  failing  to  take  out  a license,  said : 

“The  ordinance  is  not  repugnant  to  the  pro- 
visions of  section  3,  article  X of  our  State  Constitu- 
tion. That  section  provides  that  taxes,  shall  be 


61 


uniform  upon  the  same  class  of  subjects  within  the 
territorial  limits  of  the  authority  levying  the  tax. 

# # * All  sewing  machine  agents  are  taxed  alike, 
and  this  meets  the  constitutional  requirement  # 

* * * that  other  agents,  agents  engaged  in  other 

classes  of  business  are  not  taxed  by  the  city,  does 
not  affect  the  constitutional  principle  controlling 
this  case.  The  only  prohibition  of  the  section  being 
discussed  is  that  which  forbids  inequality,  favoritism, 
to  be  exercised  in  imposing  taxes  upon  the  same  class 
of  subjects.  So  long  as  this  is  not  done,  the  Con- 
stitution is  not  infringed,  nor  the  rules  of  uniformity 
and  inequality  violated.” 

I have  cited  and  discussed  these  cases  as  to  the  various 
businesses  other  than  the  traffic  in  intoxicating  liquors, 
simply  and  purely  to  present  to  the  Court  the  rule  and  appli- 
cation of  the  provisions  of  the  Constitution  of  the  State  of 
Missouri  in  question  as  to  those  classes. 

The  defendant  has  left  out  of  its  brief  the  key-note,  to 
wit : that  the  rules  are  different  when  applied  to  the  licensing 
of  a business  already  under  legal  condemnation,  and  which 
cannot  be  pursued  as  a fundamental  right,  and  a business 
which  is  not  declared  illegal. 

The  courts  of  this  State  have  uniformly  held , that  the 
license  tax  exacted  by  the  statute  regulating  dramshops  is  not 
a tax  within  the  meaning  of  section  3,  article  X,  of  the  Con- 
stitution of  Missouri,  and  also  that  the  license  tax  regulating 
the  manufacture  and  sale  whether  at  wholesale  or  retail  does 
not  violate  said  section  and  provision. 

Troll  vs.  Hudson,  78  Mo.  302. 

State  vs.  Bixman,  162  Mo.  1. 

(And  other  cases  cited  before.) 


62 


The  State  has  presented  the  law  under  defendant’s 
’second  challenge  at  length  for  the  reason,  the  principles  an- 
nounce and  the  questions  discussed  under  this  division  are 
really  sufficient  to  meet,  and  do  meet,  all  the  remaining  chal- 
lenges of  the  defendant,  and  it  will  be  unnecessary  for  the 
State  to  review  the  remaining  objections  at  any  length.  It 
would  be  but  a waste  of  time,  speech  and  research. 


III. 

THE  ACT  DOES  NOT  VIOLATE  SECTION  4.  AR- 
TICLE X OF  THE  CONSTITUTION  OF  MIS- 
SOURI, AND  DOES  NOT  IMPOSE  A TAX  ON 
PROPERTY  IN  THE  STATE  NOT  IN  PROPOR- 
TION TO  ITS  VALUE,  AS  CHARGED  IN  THE 
THIRD  SPECIFICATION. 

The  defendant  is  at  sea  again,  because  he  thinks  the 
law  is  a 'property  tax.  Let  us  again  state,  it  is  a license  law 
regulating  a traffic,  which  is  illegal  without  a special  permit 
from  the  State.  The  authorities  heretofore  cited  answer 
this  objection. 

Judge  Gantt,  in  the  case  of  State  vs.  Bixman,  162  Mo. 
1.  c.  24,  on  this  point  said : 

“We  construe  the  act  in  view  of  all  its  parts, 
and  in  connection  with  other  license  laws  of  this 
State,  and  hold  that  the  fee  exacted  is  the  price 
which  the  State  demands  for  the  privilege  of  doing 
the  business  of  brewing  and  selling  beer  and  malt 
liquors  in  this  State  and  it  is  immaterial  by  what 
name  it  is  called,  and,  being  such,  it  is  not  a tax 
upon  property,  within  the  meaning  of  our  Constitu- 
tion, and  hence  the  objections  that  it  is  not  levied 
according  to  value  must  fall.” 


63 


On  page  30  of  the  same  case,  the  court  said : 

“We  hold  that  it  is  competent  for  the  Legisla- 
ture to  fix  the  amount  in  proportion  to  the  business 
done  or  the  output  sold  as  in  this  case.  That  it  is 
a matter  for  the  law-making  power  to  determine, 
and,  as  we  have  already  said,  it  does  not  follow 
that  a license  must  issue  for  a fixed  period.  The 
imposition  of  the  tax  is  one  thing;  the  license,  an- 
other.” 

On  page  36  of  the  same  case,  the  court  said : 

“We  think  it  is  competent  for  the  General  As- 
sembly to  classify  the  different  kinds  of  liquor 
dealers  and  impose  differential  taxes  upon  such 
classes.  * * * The  law  as  to  its  taxing  features 
operates  upon  a business  and  not  upon  property, 
and  hence  is  not  required  to  be  uniform  to  all  forms 
of  traffic  or  to  all  classes,  a difference  was  made  be- 
tween a manufacturer  and  a wholesaler,  and  it  was 
held  proper  classification.” 

To  the  same  effect  is 

Black  on  Intoxicating  Liquors,  Secs.  109,  232. 

In  the  license  act  of  1909  the  license  fee  is  fixed  at  a fee 
certain  as  to  some  classes  and  according  to  the  output  sold 
in  others.  So,  under  either  view,  the  State  is  safe.  If  the 
license  is  a certain  stated  amount,  that  is  legal.  If  it  is  an 
amount  to  be  fixed  and  determined  by  the  amount  of  busi- 
ness done  or  output  sold,  that  is  legal. 

The  court,  on  page  31  of  case  of  State  vs.  Bixman, 
supra , said : 


64 


“But  there  is  no  necessary  connection  what- 
ever between  them  (that  is  license  and  taxation). 
A business  may  be  licensed,  and  not  be  taxed ; or  it 
may  be  taxed,  and  yet  not  licensed.  And  so  far  is 
the  tax  from  being  necessarily  a license  that  pro- 
vision is  frequently  made  by  law  for  the  taxation 
of  a business  that  is  carried  on  under  a license  ex- 
isting independent  of  the  tax.” 

The  provisions  of  this  section  and  article  of  the  Mis- 
souri Constitution  apply  only  to  a property  tax;  that  is  to 
say,  the  cases  where  there  is  a specific  and  tangible  property 
capable  of  valuation  and  of  being  taxed  in  proportion 
thereto. 

This  section  of  the  Constitution  does  not  abridge  the 
power  of  the  Legislature  to  provide  for  revenue  from  sources 
other  than  property.  It  does  not  forbid  license  fees  on 
privileges  or  occupations.  Especially  is  this  true  as  to  li- 
censes which  are  in  the  nature  of  police  regulations. 

State  vs.  Bixman,  162  Mo.  1. 

City  of  Carthage  vs.  Bhodes,  101  Mo.  175. 

Express  Co.  vs.  St.  Joseph,  66  Mo.  675. 

(And  other  cases.) 

The  decision  of  the  court  in  the  Bixman  case  is  alone 
sufficient  to  dispose  of  this  contention  of  the  defendant. 
This,  however,  with  the  other  decisions,  makes  it  unneces- 
sary for  the  State  to  further  discuss  this  challenge. 


65 


IV. 

THE  ACT  DOES  NOT  VIOLATE  SECTIONS  6 AND  7 
OF  ARTICLE  X OF  THE  CONSTITUTION  OF 
MISSOURI  AS  TO  THE  EXEMPTION  OF  PROP- 
ERTY FROM  TAXATION,  AS  CHARGED  IN  THE 
FOURTH  SPECIFICATION. 

These  sections  of  the  Constitution  relate  only  to  exemp- 
tions connected  with  the  taxation  of  property.  The  defend- 
ant continues  to  labor  under  the  mistaken  apprehension 
that  the  act  under  consideration  is  one  providing  for  a tax 
upon  property.  Its  contention  falls,  because  the  act  is,  as 
heretofore  stated,  a license  law.  The  State  does  not  take 
its  challenge  seriously. 

In  the  case  of  State  ex  rel.  Fath  vs.  Henderson,  160 
Mo.  1.  c.  217,  Judge  Gantt,  delivering  the  opinion  for  the 
court,  said: 

“The  contention,  like  others  already  discussed, 
is  predicated  upon  the  fact  that  this  is  a property 
tax,  for  it  is  evident  that  sections  6 and  7 of  ar- 
ticle X of  the  Constitution  deals  directly  with 
property  taxation , and  limits  the  amount  of  prop- 
erty which  may  be  exempted  from  such  taxation, 
but  as  we  have  already  held  this  is  not  a property 
tax , * * * it  necessarily  follows  that  said  sec- 

tions of  the  Constitution  have  no  application  to  the 
statute  under  discussion” 

Before  these  sections  could  be  applicable  the  law  must 
be  declared  a revenue  measure  and  a tax  upon  the  property . 
As  this  is  not  the  case,  and  as  I have  cited  numerous  authori- 
ties and  argued  that  feature  at  great  length,  it  is  useless  to 


p— 5 


66 


repeat  any  portion  of  the  same  under  this  challenge.  Here 
we  are  dealing  with  the  licensing  of  the  traffic  and  the  con- 
stitutional provision  has  no  application. 

Again,  if  this  challenge  were  good,  it  would  not  affect 
the  validity  of  the  act  in  any  way.  The  law  would  survive 
and  stand  and  be  susceptible  of  enforcement  even  if  the 
contention  were  true. 

State  ex  rel.  vs.  Henderson,  160  Mo.  1.  c.  217. 

i 

i 

! 

Y. 

THE  ACT  DOES  NOT  VIOLATE  SECTION  30,  AR- 
TICLE II  OF  THE  CONSTITUTION  OF  MIS- 
SOURI, AND  ITS  ENFORCEMENT  WOULD  NOT 
DEPRIVE  THE  DEFENDANT  OF  ITS  LIBERTY 
AND  ITS  PROPERTY  WITHOUT  DUE  PROCESS 
OF  LAW,  AS  CHARGED  IN  THE  FIFTH  SPECI- 
FICATION. 

In  reference  to  this  feature  of  the  law,  Black  on  In- 
toxicating Liquors,  in  section  108,  page  143,  says : 

“A  statute  taxing  the  business  of  liquor  selling 
may  provide  for  the  collection  of  the  tax,  * * * 

and  may  imporse  penalties  for  its  non-payment.  * 
* * Such  provisions  cannot  be  said  to  deprive 

the  citizen  of  his  rights  or  property  without  due 
process  of  law.” 

Black  on  Intoxicating  Liquors,  Secs.  37,  83,  108, 
109. 

Adler  vs.  Whitbeck,  44  Ohio,  539. 

Legislation  is  not  open  to  the  charge  of  depriving  one 
of  his  rights  without  due  process  of  law  if  it  be  general  in 
its  operation  upon  the  subjects  to  which  it  relates. 


67 


State  vs.  Cantwell,  179  Mo.  1.  c.  264. 

Dent  vs.  West  Virginia,  129  U.  S.  114. 

This  section  of  the  Constitution  has  no  reference  to 
those  statutes  imposing  license  fees  regulating  a business 
or  occupation.  If  it  has  no  application  to  such  generally, 
it  clearly  would  have  no  application  to  a license  fee  regulat- 
ing a traffic  which,  without  the  license,  is  illegal  under  the 
laws  of  the  State. 

The  defendant  has  no  right  to  engage  in  the  traffic  of 
intoxicating  liquors  at  all.  The  State  can  abolish  the  traffic 
entirely,  and  if  it  can  abolish  it  and  not  thereby  take  its 
property  without  due  process  of  law,  how  can  it  be  said  his 
property  is  taken  without  due  process  of  law  in  regulating 
the  traffic? 

In  prohibiting  the  manufacture  and  sale  of  intoxicating 
liquors  in  the  State,  it  cannot  be  considered  as  impairing 
the  obligation  of  contracts,  by  legislative  grant,  at  the  time 
of  its  enactment  to  manufacture  or  sell  such  liquors. 

Black  on  intoxicating  liquors,  section  37,  page  48,  con- 
tains in  reference  to  the  prohibition  of  the  manufacture 
and  sale  of  intoxicating  liquors,  the  following: 

“And  although  it  may  deprive  persons  of  the 
right  to  pursue  a business  previously  lawful,  and 
may  have  the  effect  of  diminishing  the  value  of 
property  owned  by  them,  and  especially  adapted 
to  the  continuance  of  the  business,  it  does  not,  for 
that  reason,  amount  to  a deprivation  of  their  prop- 
erty or  liberty  without  due  process  of  law,  within 
the  meaning  of  the  Constitution.  Neither  does  it 
violate  the  privileges  or  immunities  secured  to  citi- 
zens of  the  United  States  by  the  Fourteenth 
Amendment.” 


68 


This  position  is  sustained  by  the  following  cases,  aside 
from  those  of  the  State: 

Mugler  vs.  Kansas,  123  U.  S.  623. 

Crowley  vs.  Christensen,  137  U.  S.  1.  c.  91. 

Cox  vs.  Texas,  202  U.  S.  446. 

Downham  vs.  Alexandria,  10  Wall,  173. 

Kidd  vs.  Pearson,  128  U.  S.  1. 

Williams  vs.  Fears,  179  U.  S.  270. 

Moore  vs.  Indianapolis,  120  Ind.  483. 

Drake  vs.  Kaiser,  73  Iowa,  703. 

In  the  case  of  Mugler  vs.  Kansas,  123  U.  S.  1.  c.  659, 
Justice  Harlan,  in  speaking  for  the  court,  quoted  approv- 
ingly from  the  97th  U.  S.  33,  as  follows: 

“As  a measure  of  police  regulation  looking  to 
the  preservation  of  public  morals,  a State  law  pro- 
hibiting the  manufacture  and  sale  of  intoxicating 
liqurs  is  not  repugnant  to  any  clause  of  the  Con- 
stitution of  the  United  States.” 

This  declaration  of  the  court  is  the  law  and  is  certainly 
broad  enough . If  the  State  can  prohibit  the  manufacture 
and  sale  and  those  laws  held  constitutional  and  valid  by 
the  Supreme  Court  of  the  United  States,  then,  the  holding 
must  be,  as  stated  in  the  above  quotation,  that  such  acts  do 
not  infringe  any  constitutional  provision  either  of  the  State 
or  of  the  United  States.  Consequently  such  laws  do  not 
impair  the  obligation  of  contracts  or  deprive  or  take  prop- 
erty or  liberty  without  due  process  of  law  or  abridge  any 
of  the  prvileges  or  immunities  under  either  the  State  or 
Federal  Constitutions. 

Then  in  licensing  the  business  or  occupation  of  manu- 


69 


facturing  and  selling  intoxicating  liquors,  how  can  the  les- 
ser law  offend  under  the  State  and  Federal  Constitutions 
when  the  greater  law  or  that  of  prohibition  could  not  of- 
fend? If  the  whole  does  not  violate  any  State  or  Federal 
constitutional  provision,  certainly  a lesser  part  would  not 
do  so. 

The  State  courts  have  held  this  section  of  the  Consti- 
tution is  not  violated  by  laws  regulating  businesses  or  oc- 
cupations. 

St.  Louis  vs.  Lemp  Mfg.  Co.,  139  Mo.  560. 

State  vs.  Boring,  194  Mo.  1.  c.  414. 

State  vs.  Davis,  194  Mo.  485.' 

State  vs.  Murlin,  137  Mo.  297. 

State  vs.  Bixman,  162  Mo.  1. 

The  defendant  has  no  vested  rights  to  be  disturbed  or 
affected  by  such  legislation.  The  decisions  heretofore  cited 
in  State  vs.  Bixman  and  others  have  so  held.  Having  no 
vested  rights,  and  this  law  being  purely  a license  law,  the 
challenge  made  by  the  defendant  as  to  this  section  is  en- 
tirely without  merit. 


VI. 

THE  ACT  DOES  NOT  VIOLATE  THE  FIFTH 
AMENDMENT  TO  THE  CONSTITUTION  OF 
THE  UNITED  STATES,  NOT  BEING  AN  AT- 
TEMPT TO  DEPRIVE  THE  CITIZENS  OF  THE 
STATE  OF  MISSOURI  OF  THEIR  PROPERTY 
WITHOUT  DUE  PROCESS  OF  LAW,  AS 
CHARGED  IN  THE  SIXTH  SPECIFICATION. 

The  Supreme  Court  of  the  United  States  for  seventy- 
five  years  has  held  that  this,  the  -fifth  amendment  to  the 


70 


Federal  Constitution,  did  not  relate  to  laws  enacted  by  the 
States,  but  solely  to  the  enactments  of  Congress. 

The  following  decisions  of  the  Supreme  Court  of  the 
United  States  settle  this  declaration  conclusively: 

Livingston  vs.  Moore,  32  U.  S.  469. 

Eilenbecker  vs.  District  Court  Plymouth  Co.,  Iowa, 
134  U.  S.  34. 

Brown  vs.  New  Jersey,  175  U.  S.  174. 

Thorington  vs.  City  Council  of  Montgomery,  147 
U.  S.  490. 

In  the  case  of  Livingston  vs.  Moore,  32  U.  S.  1.  c.  562, 
the  court  having  under  consideration  the  ninth  amendment, 
Justice  Johnson,  in  speaking  for  the  court,  said: 

“As  to  the  amendments  of  the  Constitution  of 
the  United  States,  they  must  be  put  out  of  the  case 
since  it  is  now  settled  that  those  amendments  do 
not  extend  to  the  States.” 

In  the  case  of  Eilenbecker  vs.  The  District  Court  of 
Plymouth  County,  Iowa,  U.  S.  134  1.  c.  34,  the  court  having 
under  consideration  the  eighth  amendment,  Justice  Miller, 
in  speaking  for  the  court,  said: 

“The  first  three  assignments  of  error  * * * * 
are  disposed  of  at  once  by  the  principle  often  de- 
cided by  this  court,  that  the  first  eight  articles  of 
the  amendments  to  the  Constitution,  have  refer- 
ence to  powers  exercised  by  the  Government  of  the 
United  States  and  not  to  those  of  the  States.” 

In  the  case  of  Brown  vs.  New  Jersey,  175  U.  S.  1.  c. 
174,  the  court  having  under  consideration  certain  amend- 
ments to  the  Federal  Constitution,  Justice  David  Brewer, 
in  speaking  for  the  court,  said: 


71 


“The  first  ten  amendments  to  the  Federal 
Constitution  contain  no  restrictions  on  the  powers 
of  the  State,  but  were  intended  to  operate  solely 
on  the  Federal  Government.” 

These  decisions  clearly  announce  the  doctrine  that  the 
fifth  amendment  does  not  relate  to  the  powers  of  the  States 
but  of  the  United  States.  If  the  first  ten  amendments  do 
not  apply,  certainly  the  fifth  amendment  cannot,  because  it 
is  one  of  the  ten.  We  can  be  more  specific,  however. 

In  the  case  of  Thorington  vs.  The  City  Council  of  Mont- 
gomery, 147  U.  S.  1.  c.  492,  the  court,  having  under  consider- 
ation the  ; fifth  amendment  to  the  Constitution  of  the  United 
States,  Chief  Justice  Fuller,  in  delivering  the  opinion  of 
the  court,  said: 

“The  fifth  amendment  operates  exclusively  in 
restriction  of  Federal  power,  and  has  no  applica- 
tion to  the  States.” 

This  decision,  with  the  others,  places  the  matter  beyond 
the  pale  of  controversy. 

The  challenge  is  so  wanting  in  merit,  the  State  will 
not  consider  it  further.  If  a challenge  for  this  reason  could 
be  made  it  must  be  made  under  the  fourteenth  amendment. 

VII. 

THE  ACT  DOES  NOT  VIOLATE  SECTION  1 OF  THE 
FOURTEENTH  AMENDMENT  TO  THE  CON- 
STITUTION OF  THE  UNITED  STATES,  AND 
DOES  NOT  ATTEMPT  TO  ABRIDGE  THE 
PRIVILEGES  AND  IMMUNITIES  OF  CITIZENS 
OF  THE  UNITED  STATES,  AND  DOES  NOT  AT- 
TEMPT TO  DEPRIVE  THE  CITIZENS  OF  THE 
SEVERAL  STATES  AND  OF  THE  STATE  OF 


72 


MISSOURI  OF  THEIR  PROPERTY  WITHOUT 
DUE  PROCESS  OF  LAW,  AND  DOES  NOT  DENY 
TO  THOSE  WHO  COME  WITHIN  THE  PROVIS- 
IONS OF  SAID  ACT,  THE  EQUAL  PROTEC- 
TION OF  THE  LAW,  AS  CHARGED  IN  THE 
SEVENTH  SPECIFICATION. 

The  fourteenth  amendment  forbids  the  States  to  make 
or  enforce  any  law  which  shall,  “Abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States.”  But  the 
right  to  sell  intoxicating  liquors  is  not  one  of  the  privileges 
or  immunities  here  contemplated. 

In  support  of  this  principle,  Chief  Justice  Fuller,  in 
delivering  the  opinion  of  the  Supreme  Court  of  the  United 
States  in  the  case  of  Giozza  vs.  Tieman,  148  U.  S.  1.  c.  661, 
in  upholding  the  validity  of  the  whiskey  laws  of  the  State 
of  Texas,  said: 

“There  is  nothing  in  the  Constitution  of  Texas 
restricting  the  power  of  the  Legislature  in  refer- 
ence to  the  sale  of  liquor,  and  it  is  well  settled  that 
the  Legislature  of  that  State  has  the  power  to  regu- 
late the  mode  and  manner  and  the  circumstances 
under  which  the  liquor  traffic  may  be  conducted 
and  to  surround  the  right  to  pursue  it  with  such 
conditions,  restrictions  and  limitations  as  the  Leg- 
islature may  deem  proper.  Ex  parte  Bell,  24  Tex. 
App.  428;  Bell  vs.  State,  28  Tex.  App.  96.  In 
these  cases,  and  in  the  case  before  us  the  law  in 
question  was  held  to  be  within  the  legislative 
power.  And,  so  far  as  the  State  Constitution  is 
concerned,  that  conclusion  is  not  re-examinable 
here.  But  it  is  contended  that  the  act  conflicts 
with  the  provisions  of  the  fourteenth  amendment , 
that  ‘no  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citi- 


7a 


zens  of  the  United  States;  nor  shall  any  State  de- 
prive any  person  of  life,  liberty,  or  property  with- 
out due  process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the 
laws.’ 

“The  privileges  and  immunities  of  citizens  of 
the  United  States  are  privileges  and  immunities 
arising  out  of  the  nature  and  essential  character 
of  the  national  government,  and  granted  and  se- 
cured by  the  Constitution  of  the  United  States, 
and  the  right  to  sell  intoxicating  liquors  is  not  one 
of  the  rights  growing  out  of  such  citizenship .” 

If  the  right  to  sell  intoxicating  liquors  is  not  one  of  the 
rights  growing  out  of  American  citizenship , or  of  the  privi- 
leges or  immunities  under  the  fourteenth  amendment,  then 
it  would  be  impossible  for  the  act  of  1909  to  violate  that 
which  does  not  now  nor  never  did  exist.  The  very  good 
reason  for  the  doctrine  announced  is,  as  stated  in  the  be- 
ginning of  this  brief,  that  the  manufacture  and  sale  of  in- 
toxicating liquors  is  not  a natural  or  fundamental  right, 
but  a privilege  permitted  under  the  police  power  of  the 
State,  and  therefore  does  not  involve  or  violate  the  four- 
teenth amendment. 

If  we  were  dealing  wTith  a law  which  was  a tax  upon 
property  instead  of  a license  measure  under  the  police  power 
directed  against  the  liquor  traffic,  then  we  might  discuss 
the  questions  arising  under  the  fourteenth  amendment. 

On  page  662  of  the  case  of  Giozza  vs.  Tiernan,  supra , 
the  court  said: 

“The  amendment  (fourteenth)  does  not  take 
from  the  States  those  powers  of  police  that  were 
reserved  at  the  time  the  original  constitution  was 
adopted.  * * * It  was  not  designed  to  interfere 


74 


with  the  power  of  the  State  to  protect  the  lives, 
liberty  and  property  of  its  citizens  and  to  promote 
their  health,  morals,  education  and  good  order.” 

In  the  case  of  Barbier  vs.  Connolly,  113  U.  S.  1.  c.  30, 
Justice  Field  said: 

“But  neither  the  amendment  (fourteenth), 
broad  and  comprehensive  as  it  is,  nor  any  other 
amendment  was  designed  to  interfere  with  the 
powers  of  the  State , sometimes  termed  its  ‘ police 
power]  to  prescribe  regulations , to  promote  the 
health , peace , morals , education  and  good  order  of 
the  people , etc.” 

In  the  case  of  Powell  vs.  Pennsylvania,  127  U.  S.  1.  c. 
683,  in  discussing  the  oleomargarine  act  of  Pennsylvania, 
Justice  Harlan  said: 

“It  is  scarcely  necessary  to  say  that  if  this 
Statute  is  a legitimate  exercise  of  the  police  power 
of  the  State  for  the  protection  of  the  health  of 
the  people  * * * it  is  not  inconsistent  with  that 
amendment  (fourteenth)  ; for  it  is  the  settled  doc- 
trine of  this  court  that,  as  government  is  organized 
for  the  purpose,  among  others,  of  preserving  the 
public  health  and  the  public  morals,  it  cannot  di- 
vest itself  of  the  power  to  provide  for  those  objects; 
and  the  fourteenth  amendment  was  not  designed  to 
interfere  with  the  exercise  of  that  power  by  the 
State” 

In  the  case  of  Ex  parte  Kemmler,  136  U.  S.  1.  c.  448 
(34  Law  Ed.  524),  Chief  Justice  Fuller  said: 

“But  it  (fourteenth  amendment)  was  not  de- 
signed to  interfere  with  the  power  of  the  State  to 


75 


protect  the  lives,  liberty  and  property  of  its  citi- 
zens and  to  promote  their  health,  peace,  morals, 
education  and  good  order.” 

In  the  case  of  Mugler  vs.  Kansas,  123  U.  S.  623  (31 
Law  Ed.  1.  c.  209)  we  take  the  following  extract  from  that 
opinion : 

“Referring  to  the  contention  that  the  right  to 
sell  intoxicating  liquors  was  secured  by  the  four- 
teenth amendment , the  court  said  (in  Bartemeyer 
vs.  Iowa,  18  Wall,  123),  that  ‘so  far  as  such  a right 
exists  it  is  not  one  of  the  rights  growing  out  of  the 
citizenship  of  the  United  States.’  In  Boston  Beer 
Co.  vs.  Massachusetts,  97  U.  S.  33,  it  was  said  that, 
‘as  a measure  of  police  regulation,  looking  to  the 
preservation  of  public  morals  a State  law  prohibit- 
ing the  manufacture  and  sale  of  intoxicating  liquors 
is  not  repugnant  to  any  clause  of  the  Constitution 
of  the  United  States.’  Finally,  in  Foster  vs.  Kan- 
sas, 112  U.  S.  206,  the  court  said  that  the  question 
as  to  the  constitutional  power  of  the  State  to  pro- 
hibit the  manufacture  and  sale  of  intoxicating  liq- 
uors was  no  longer  an  open  one  in  this  court.  These 
cases  rest  upon  the  acknowledged  right  of  the 
States  of  the  Union  to  control  their  purely  inter- 
nal affairs,  and,  in  so  doing,  to  protect  the  health, 
morals,  and  safety  of  their  people  by  regulations 
that  do  not  interfere  with  the  execution  of  the 
powers  of  the  general  government  or  violate  rights 
secured  by  the  Constitution  of  the  United  States.” 

Thus  it  will  be  seen  from  the  extracts  taken  from  the 
opinions  of  the  Supreme  Court  of  the  United  States  bear- 
ing directly  upon  the  subject,  that,  when  a State  has  en- 
acted a law  under  its  police  power  regulating  the  health, 


/ 


76 

morals  and  good  government  of  its  citizens,  it  cannot  violate 
any  right  under  the  fourteenth  amendment  to  the  Federal 
Constitution.  Such  legislation  is  the  absolute  right  of  the 
State. 

The  defendant  continues  to  labor  at  the  one  oar , that 
the  law  of  1909  is  a tax  on  property  and  not  a license  under 
the  police  powers  of  the  State,  and  thereby  is  its  mistake. 

The  defendant,  on  page  21  of  its  brief,  quotes  from  the 
opinion  in  the  case  of  Giozza  vs.  Tiernan,  148  U.  S.  659. 
It  quotes,  however,  that  part  of  the  opinion  which  has  ref- 
erence only  to  the  taxation  of  property  and  does  not  quote 
from  that  part  of  the  opinion  which  bore  directly  upon  the 
question  decided  upholding  the  statute  of  the  State  of  Texas 
regulating  the  sale  of  whiskey  under  the  police  power.  The 
quotation  used  also  has  inserted  the  word  “but,”  which  con- 
veys an  entirely  different  meaning.  If  the  court  will  turn 
to  and  read  the  opinion,  it  will  find  the  decision  a very 
strong  one  in  favor  of  sustaining  the  act  of  1909.  I have 
quoted  freely  from  that  opinion  in  the  preceding  parts  of 
this  brief.  Attention  is  called  to  the  defendant’s  quotation 
from  the  opinion,  because  as  presented  by  it,  it  is  mislead- 
ing. 

It  cannot  be  supposed  that  the  States  intended  by 
adopting  the  fourteenth  amendment  to  impose  • restraints 
upon  the  exercise  of  their  powers  for  the  protection  of  the 
safety,  health  or  morals  of  a community.  No  legislature 
can  bargain  away  the  public  health  or  the  public  morals. 
The  people  themselves  cannot  do  it,  much  less  their  servant. 
Government  is  organized  with  a view  to  their  preservation, 
and  cannot  divest  itself  of  the  power  to  provide  for  them. 

The  above  propositions  are  supported  by  the  following 
authorities : 

Giozza  vs.  Tiernan,  148  U.  S.  657. 

Barbier  vs.  Connolly,  113  U.  S.  28. 


77 


Ex  parte  Kemmler,  136  U.  S.  436. 

Powell  vs.  Pennsylvania,  127  U.  S.  678. 

Mugler  vs.  Kansas,  123  U.  S.  623. 

Pacific  Express  Co.  vs.  Seibert,  142  U.  S.  339. 
Crowley  vs.  Christensen,  137  U.  S.  86. 

Clark  vs.  Titusville,  184  U.  S.  329. 

Dent  vs.  West  Virginia,  129  U.  S.  124. 

In  passing  upon  the  challenge  that  the  Beer  Inspection 
Law  affecting  the  manufacture  and  sale  of  beer,  violated 
the  fourteenth  amendment  to  the  Federal  Constitution, 
Judge  Gantt,  in  the  case  of  State  vs.  Bixman,  162  Mo.  at 
39,  said: 

“As  to  the  charge  that  this  act  violates  the 
fourteenth  amendment  of  the  Federal  Constitution, 
it  need  only  be  said  that  the  fourteenth  amend- 
ment was  never  designed  to  prevent  a State  from 
adjusting  its  system  of  taxation,  or  to  interfere 
. with  the  exercise  of  its  exclusive  right  to  make  all 
proper  police  regulations  to  promote  the  health, 
peace,  morals,  education  or  good  order  of  its  peo- 
ple, so  long  as  some  particular  provisions  of  the 
Constitution  of  the  United  States  is  not  infringed. 
(Barbier  vs.  Connolly,  113  U.  S.  27;  Bell’s  Gap 
R.  Co.  vs.  Pennsylvania,  134  U.  S.  238).” 

Black  on  Intoxicating  Liquors,  in  Section  36,  says: 

“The  fourteenth  amendment  forbids  the  States 
to  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the 
United  States.  But  the  right  to  sell  intoxicating 
liquors  is  not  one  of  the  privileges  or  immunities 
here  contemplated .” 


78 


In  Section  37,  the  same  author  says: 

“And  although  it  may  deprive  persons  of  the 
right  to  pursue  a business  previously  lawful,  and 
may  have  the  effect  of  diminishing  the  value  of 
property  owned  by  them  and  especially  adapted 
to  the  continuance  of  the  business,  it  does  not,  for 
that  reason,  amount  to  a deprivation  of  their  prop- 
erty or  liberty  without  due  process  of  law  within 
the  meaning  of  the  Constitution.  Neither  does  it 
violate  the  privileges  or  immunities  secured  to  citi- 
zens of  the  United  States  by  the  fourteenth  amend- 
ment. Nor,  if  confined  to  persons  and  property 
fully  within  the  jurisdiction  of  the  State,  is  it  in- 
valid as  a regulation  of  foreign  or  interstate  com- 
merce.” 

The  same  author,  in  section  48,  says: 

“Neither  is  a restriction  of  this  character  re- 
pugnant to  the  exclusive  power  of  Congress  to  regu- 
late inter-State  commerce.  If  it  should  have  any 
effect  upon  such  commerce,  its  relation  to  it  would 
be  only  remote  and  incidental.  Nor  does  it  con- 
travene the  provisions  of  the  fourteenth  amend- 
ment 

In  section  82,  the  same  author  says: 

“The  liquor  traffic  is  nowhere  in  this  country 
recognized  as  a lawful  business,  except  as  permit- 
ted and  regulated  by  positive  law.  It  is  not  an 
avocation  which  every  man  has  a natural  right  to 
pursue.  It  does  not  stand  on  the  same  level  with 
such  occupations  as  are  useful  to  the  community  or 
beneficial  to  the  trade  and  commerce  of  the  country. 
On  the  contrary  it  is  pernicious  in  its  effect,  and 


79 


is  properly  subject  to  regulation  under  the  police 
power.  It  is  in  no  sense,  therefore,  a privilege 
or  immunity  such  as  is  secured  by  the  Constitu- 
tion.” 

(To  the  same  effect  is  Sec.  83,  same  author.) 

From  these  utterances  of  the  Supreme  Court  of  the 
United  States  and  of  the  Supreme  Court  of  the  State  of 
Missouri,  and  those  of  so  eminent  an  authority  as  Black 
on  Intoxicating  Liquors,  the  conclusion  is  inevitable  that 
the  license  law  of  1909  does  not  violate  any  of  the  several 
provisions  of  the  fourteenth  amendment  to  the  Constitution 
of  the  United  States,  nor  for  that  matter,  as  was  said  by 
Justice  Harlan,  in  quoting  from  Boston  Beer  Co.  vs.  Mas- 
sachusetts, 97  U.  S.  33,  “Is  not  repugnant  to  any  clause  of 
the  Constitution  of  the  United  States.” 

These  decisions  also  answer  the  eighth,  ninth  and  tenth 
challenges  that  such  laws  enacted  under  the  police  power 
of  the  States  are  not  attempts  to  regulate  commerce  between 
States  and  do  not  deny  to  the  citizens  of  other  States  the 
privileges  and  immunities  of  the  citizens  of  this  State  or 
the  equal  protection  of  the  laws.  In  view  of  the  fact,  how- 
ever, that  I have  presented  these  matters  singly  so  far  I 
will  briefly  discuss  the  three  challenges  remaining. 

VIII. 

THE  ACT  DOES  NOT  VIOLATE  SECTION  10,  AR- 
TICLE I OF  THE  CONSTITUTION  OF  THE 
UNITED  STATES,  AND  DOES  NOT  ATTEMPT 
TO  LEVY  AN  IMPOST  OR  IMPORT  DUTY  OR 
TAX  ON  THE  PROPERTY  OF  THE  SEVERAL 
STATES  COMING  INTO  MISSOURI,  AS 
CHARGED  IN  THE  EIGHTH  SPECIFICATION. 

This  contention  of  the  defendant  is  settled  adversely 


80 


to  it  in  the  case  of  State  vs.  Bixman,  162  Mo.  On  page  39 
of  that  decision  in  considering  this  same  challenge,  Judge 
Gantt  said: 

“As  to  the  charge  that  it  violates  section  10 
of  article  I of  the  Constitution  of  the  United 
States,  which  declares  that  ‘No  state  shall,  with- 
out the  consent  of  Congress,  lay  any  imposts  or 
duties  upon  imports  or  exports  except  what  may 
be  absolutely  necessary  for  executing  its  inspection 
laws ; and  the  net  produce  of  all  duties  and  imports 
laid  by  any  state  on  imports  or  exports  shall  be 
for  the  use  of  the  treasury  of  the  United  States, 
and  all  such  laws  shall  be  subject  to  revision  and 
control  of  Congress.’  It  is  the  settled  judicial  con- 
struction of  this  section  that  it  refers  only  to  im- 
ports from  foreign  countries,  and  not  from  one 
state  into  another;  but,  even  if  our  inspection  law 
is  held  to  be  excessive  as  to  imports,  it  is  not  sub- 
ject to  judicial  review,  but  must  stand  till  Con- 
gress shall  see  fit  to  alter  it.” 

That  such  legislation  does  not  violate  this  constitu- 
tional provision  is  sustained  by  the  following  authorities; 
among  many  others: 

Black  on  Intoxicating  Liquors,  Secs.  70,  82,  83. 
State  vs.  Bixman,  162  Mo.  1.  c.  39. 

State  vs.  Bengsch,  170  Mo.  1.  c.  116,  117. 
Slaughter  House  Cases,  16  Wall.  36. 

Bartemeyer  vs.  Iowa,  18  Wall.  129. 

Barbier  vs.  Connolly,  113  U.  S.  27. 

Crowley  vs.  Christensen,  137  U.  S.  86. 

Neilson  vs.  Garza,  2 Woods,  287. 

Guano  Co.  vs.  Board  of  Agriculture,  171  U.  S.  345. 


81 


The  authorities  heretofore  cited  under  the  sixth  and 
seventh  challenges  are  also  authorities  in  support  of  the 
State’s  contention  here.  It  will,  therefore,  serve  no  useful 
purpose  to  reargue  the  matter  or  requote  the  decisions.  It 
should  be  and  is  patent,  even  upon  casual  consideration, 
that  the  eighth  challenge  is  without  merit. 

IX. 

THE  ACT  DOES  NOT  VIOLATE  THE  PROVISIONS 
OF  THE  THIRD  CLAUSE  OF  SECTION  8,  AR- 
TICLE I OF  THE  CONSTITUTION  OF  THE 
UNITED  STATES,  AND  IS  NOT  AN  ATTEMPT 
TO  REGULATE  COMMERCE  BETWEEN  THE 
SEVERAL  STATES  AND  THE  STATE  OF  MIS- 
SOURI, AS  CHARGED  IN  THE  NINTH  SPECI- 
FICATION. 

The  act  of  1909  is  confined  to  persons  and  property  and 
the  business  fully  within  the  jurisdiction  of  the  State  of 
Missouri,  consequently,  it  does  not  violate  this  constitu- 
tional provision,  known  as  the  “commerce  clause.” 

Even  if  this  were  not  so,  the  Wilson  Law,  approved 
August  8th,  1890,  removes  this  challenge  for  good  and  for 
all.  That  act  contains  the  following  provision : 

“That  all  fermented,  distilled,  or  other  intoxi- 
cating liquors  or  liquids  transported  into  any  state 
or  territory  or  remaining  therein  for  use,  consump- 
tion, sale,  or  storage  therein,  shall,  upon  arrival 
* in  such  state  or  territory  be  subject  to  the  opera- 

tion and  effect  of  the  laws  of  such  state  or  terri- 
tory enacted  in  the  exercise  of  its  police  powers  to 
the  same  extent  and  in  the  same  manner  as  though 
such  liquids  or  liquors  had  been  produced  in  such 
state  or  territory,  and  shall  not  be  exempt  there- 


p— 6 


82 


from  by  reason  of  being  introduced  therein  in  origi- 
nal packages  or  otherwise.” 

This  provision  is  contained  in  the  Acts  of  the  Fifty- 
first  Congress  of  the  United  States,  first  session  C.  728, 
p.  313. 

The  license  law  of  1909  was  enacted  under  authority 
of  the  police  power  of  the  State  of  Missouri,  regulating  the 
manufacture  and  sale  of  intoxicating  liquors,  a subject 
solely  and  purely  under  the  decisions  of  the  State  and  Fed- 
eral Courts  within  that  power , consequently,  the  Wilson 
Law  applies  to  this  enactment  of  the  Missouri  Legislature 
of  1909. 

The  defendant,  on  page  26  of  its  brief,  takes  exception 
to  the  holding  of  the  Supreme  Court  in  the  case  of  State  vs. 
Bengsch,  170  Mo.  1.  c.  116.  It  says  the  court  is  “inadver- 
tently  led  into  an  anacronism.”  That  the  court  held  the 
law  of  1901  did  not  violate  section  8 of  article  I of  the  Fed- 
eral Constitution  when,  the  defendant  says,  ‘the  Wilson 
bill  by  specific  provision  was  made  applicable  solely  and 
only  to  State  laws  enacted  in  the  exercise  of  the  police 
power?  We  say  the  law  of  1909  was  enacted  solely  as  a 
license  measure  under  the  exercise  of  the  police  power  of  the 
State. 

Then  if  the  Supreme  Court  of  this  State  is  correct  in 
its  holding  in  the  case  of  State  vs.  Bengsch,  170  Mo.  1.  c. 
116,  that  the  law  of  1901  did  not  violate  sections  8 and  10 
of  article  I of  the  United  States  Constitution  (which  it  did 
not,  no  matter  whether  a license  law  or  tax  on  property), 
then  the  license  law  of  1909  does  not.  The  defendant  con- 
tends that  the  Wilson  Law  applies  only  to  laws  enacted 
within  the  police  power  of  the  State.  That  is  true  and  that 
is  our  contention.  And  the  present  law  being  enacted  with- 
in that  power  is  not  subject  to  the  challenge  under  consider- 
ation. So  it  is  immaterial  to  the  State  which  view  or  horn 


83 


of  the  dilemma  the  defendant  may  take.  If  it  accepts  the 
utterance  of  the  Supreme  Court  of  this  State  in  the  case  of 
State  vs.  Bengsch,  170  Mo.,  its  challenge  must  fall.  If  it 
accepts  the  provisions  of  the  Wilson  bill,  its  challenge  must 
fall.  Therefore,  the  defendant  stands  without  the  hope  of 
a chance. 

Black  on  Intoxicating  Liquors  announces  the  correct 
doctrine,  which  was  the  law,  outside  of  the  Original  Pack- 
age Decision,  even  before  the  adoption  of  the  Wilson  Law, 
to  wit,  that  State  legislation  prohibiting  or  regulating  the 
manufacture  and  sale  of  intoxicating  liquors  if  confined  to 
persons  and  property  within  the  jurisdiction  of  the  State 
does  not  violate  the  Federal  Constitution,  and  is  not  a regu- 
lation of  foreign  or  interstate  commerce. 

Black  on  Intoxicating  Liquors,  Secs.  37,  70,  76,  29. 

In  what  is  known  as  the  License  Cases,  to  wit,  Thur- 
low  vs.  Massachusetts,  and  Fletcher  vs.  Rhode  Island,  and 
Pierce  vs.  New  Hampshire,  these  question  were  passed  upon 
and  there  held  that  such  legislation  affecting  the  liquor 
traffic  did  not  violate  and  was  not  inconsistent  with  any 
of  the  provisions  of  the  Federal  Constitution  or  Acts  of 
Congress.  This  is  true  either  considered  with  or  without 
the  Wilson  Law.  This  was  the  law  before  its  enactment, 
and  is  therefore  more  strongly  intrenched  today  by  the 
enactment  of  that  law. 

12  Law  Ed.  256  (U.  S.). 

Kidd  vs.  Pearson,  128  U.  S.  1,  32  Law  Ed.  346. 

In  the  case  of  Sherlock  vs.  Ailing,  93  U.  S.  99,  103, 
104,  and  in  Plumley  vs.  Massachusetts,  155  U.  S.  461,  it  was 
stated  by  the  court  that  in  conferring  upon  Congress  the 
regulation  of  commerce,  it  was  never  intended  to  cut  the 
State  off  from  legislating  on  all  subjects  relating  to  the 


84 


health,  life  and  safety  of  their  citizens,  though  the  legisla- 
tion might  indirectly  affect  the  commerce  of  the  country. 
Legislation  in  a great  variety  of  ways  may  affect  the  com- 
merce and  persons  engaged  in  it  without  constituting  the 
regulation  of  it,  within  the  meaning  of  the  Constitution. 

Sherlock  vs.  Ailing,  93  U.  S.  99. 

Plumley  vs.  Massachusetts,  155  U.  S.  461. 

Kailroad  vs.  Kentucky,  161  U.  S.  1.  c.  701. 

Gibbons  vs.  Ogden,  9 Wheat  1.  c.  194,  195. 

State  ex  rel.  Standard  Oil  Co.  218  Mo.  1.  c.  376. 

Congress  has  no  power  to  interfere  with  police  regula- 
tions relating  exclusively  to  the  internal  trade  of  the  States. 

United  States  vs.  DeWitt,  9 Wall.  41. 

Patterson  vs.  Kentucky,  97  U.  S.  501. 

No  matter  what  view  the  court  may  take,  it  can  reach 
no  conclusion  save  that  the  act  of  1909  does  not  violate  the 
commerce  clause  or  clauses  of  the  Federal  Constitution.  The 
decisions  of  the  Supreme  Court  of  the  United  States  both 
before  and  since  the  enactment  of  the  Wilson  Law,  preclude 
any  other  conclusion.  The  Wilson  Law,  however,  settles 
the  matter  for  the  court  as  to  this  challenge.  The  court 
should  also  follow  the  decision  of  the  Supreme  Court  of 
this  State  in  the  cases  of  State  vs.  Bixman,  supra , and  the 
holding  on  this  particular  point  in  the  case  of  State  vs. 
Bengsch,  supra. 


85 


X. 

THE  ACT  DOES  NOT  VIOLATE  THE  PROVISIONS 
OF  SECTION  2,  OF  ARTICLE  IV  OF  THE  CON- 
STITUTION OF  THE  UNITED  STATES,  AND 
DOES  NOT  DENY  TO  THE  CITIZENS  OF 
OTHER  STATES  THE  PRIVILEGES  AND  IM- 
MUNITIES GRANTED  TO  THE  CITIZENS  OF 
MISSOURI,  AS  CHARGED  IN  THE  TENTH 
SPECIFICATION. 

It  would  be  useless  for  me  to  review  the  argument  un- 
der the  preceding  challenges,  because  what  is  said  in  refer- 
ence to  them  applies  here.  The  same  authorities  in  passing 
upon  the  other  challenges  also  pass  upon  this  particular 
challenge,  and  conclusively  dispose  of  it.  For  that  reason 
I will  not  lengthen  the  brief,  and  it  would  be  useless  to  re- 
peat same. 

Suffice  it  to  say,  the  manufacture  and  sale  of  intoxi- 
cating liquors  is  not  a natural  right  to  pursue  an  ordinary 
calling.  To  do  so  without  a license  in  those  states  which 
have  adopted  the  license  system,  is  not  a right  that  may  be 
claimed  by  either  citizens  or  strangers,  residents  or  non- 
residents. 

Austin  vs.  State,  10  Mo.  591. 

Black  on  Intoxicating  Liquors,  Sec.  48. 

State  vs.  Bixman,  162  Mo.  1. 

Troll  vs.  Hudson,  78  Mo.  302. 

Wilson  Law,  Congressional  Act,  approved  August 
6th,  1890. 

To  the  same  effect  are  all  those  decisions  of  the  Supreme 
Court  of  the  United  States  holding  that  such  laws  do  not 
violate  any  provision  of  the  Federal  Constitution,  and 


86 


which  hold  the  right  to  sell  intoxicating  liquors  is  not  a 
right  or  privilege  given  to  any  citizen  under  or  by  virtue  of 
the  provisions  of  the  Federal  Constitution. 

IN  CONCLUSION. 

In  concluding  this  argument  it  is  unnecessary  to  make  a 
resume  of  what  has  been  said  heretofore.  The  motion  has  been 
separately  argued  in  all  of  its  features,  to  the  end  that  such 
may  not  be  necessary.  It  is,  therefore,  enough  to  say  that 
from  the  points  and  authorities  first  laid  down  for  the  guid- 
ance of  this  court,  and  before  making  the  argument  on  the 
single  challenges,  together  with  the  cases  cited  and  applied 
in  the  argument,  settle  conclusively  the  fact  that  the  manu- 
facture and  sale  of  intoxicating  liquors  in  Missouri  is  not  a 
primary  or  natural  right  which  can  be  followed  like  other 
pursuits.  To  engage  in  such  is  illegal,  without  first  secur- 
ing from  the  State  a license  or  permit  so  to  do.  That  the 
license  system  is  adopted  in  Missouri  and  held  to  be  proper 
and  constitutional  by  both  this  State  and  by  principles  in 
the  Supreme  Court  of  the  United  States.  That  it  is  a whole- 
some exercise  of  the  police  power  of  the  State  in  enacting 
legislation  promoting  the  health,  morals,  education  and 
good  order  of  its  citizens  and  in  its  police  regulation  in 
reference  to  intemperance,  pauperism  and  crime.  Pursuits 
tending  to  produce  any  of  these  results  may  be  prohibited 
altogether  or  licensed  for  a compensation  to  the  public.  The 
State  may  license  them,  if  it  so  chooses,  and  in  doing  so 
may  prescribe  the  conditions  and  name  the  price.  Those 
accepting  the  favor  cannot  challenge  the  conditions  so  long 
as  the  operation  of  the  law  is  uniform  upon  the  same  class. 

This  court  must  hold  the  license  act  of  1909  an  exer- 
cise of  the  'police  power  of  the  State  of  Missouri,  because  the 
courts  of  this  State  and  of  the  United  States  have  held 
that  such  laws  were  and  are  enacted  within  the  police 


87 


power  of  the  states.  The  defendant  has  based  its  sole  at- 
tack and  every  challenge  upon  the  ground  that  this  law  was 
not  an  act  passed  within  the  police  powers  of  the  State  regu- 
lating the  manufacture  and  sale  of  an  illegal  business,  with- 
out such  license,  but  that  it  was  solely  and  purely  a revenue 
measure  and  a tax  levied  upon  and  leveled  at  property.  As 
this  contention  of  the  defendant  must  be  decided  against 
it,  it  thereby  loses  the  battle. 

The  State,  confident  in  the  validity  and  constitution- 
ality of  the  present  enactment  of  the  Legislature  in  licens- 
ing the  manufacture  and  sale  of  intoxicating  liquors,  sub- 
mits the  question  to  this  Honorable  Court  without  further 
discussion. 

Respectfully  submitted. 

ELLIOTT  W.  MAJOR, 

Attorney- General  of  the  State  of  Missouri. 

V 


